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Browsing: Legal Papers of John Adams, Volume 1

Docno: ADMS-05-01-02-0004-0001-0003

Author: Wetmore, William
Date: 1772-11

Wetmore's Minutes of the Review1

Essex Superior Court, Salem, November 1772
Porter [and] Steel. Case for money received and promise to pay it. Plea no promise. Proof. Produced a Receipt and the signing was denied. The Clerk of Inf[erior] Court produced the original receipt.2
Sarge[ant] for Steel. The Qu. is (as this is a review) whether the former Judgment be wrong.
Adams. The principal query is whether the Receipt was sign'd.
Oliver J. Steele owns his subscribing the paper but say[s] a part has been added at the top. This must be proved by him else of no consequence save to his own disadvantage.
1. In William Wetmore's hand. Adams Papers, Microfilms, Reel No. 184.
2. The original does not appear in the files.

Docno: ADMS-05-01-02-0005-0001-0001

Editorial Note

In June 1765 at Boston, James Warden endorsed two bills of exchange drawn on a New York mercantile house and delivered them to Joseph Alcock of Portsmouth, New Hampshire. In September the bills were presented on Alcock's behalf to the drawee in New York, who refused to accept or pay them. Alcock's New York correspondent immediately procured a “protest,” the affidavit of a notary public to the presentment and refusal. At the April 1766 term of the Inferior Court at Boston Alcock sued Warden in an action of assumpsit on the bills. The court ruled for Warden on a sham demurrer to the defendant's plea of the general issue.1
Alcock appealed to the Superior Court, where, at the August term 1766, the case was tried to a jury, with James Otis and Jeremy Gridley as counsel for Alcock, and Robert Auchmuty arguing for Warden. Adams was not involved, but was present to make what amounts to a report of the { 169 } argument and decision on an interesting point of law which the case raised. Alcock had asked for damages beyond the face amount of the bills. In England, upon protest special damages could be awarded in an action against a drawer or indorser for nonpayment of a “foreign” bill, that is, one drawn on a merchant or banker outside the realm. No such recovery was allowed on an “inland” bill (one drawn on an English house), at least at common law. The damages on a foreign bill were not very clearly defined in the authorities, but they consisted principally of interest and what was called “re-exchange,” the cost to the holder of procuring a new bill for the same amount in the drawee's country.2
In the colonies a practice had developed of allowing the plaintiff on a foreign bill an additional flat percentage of its face value in lieu of re-exchange,3 and this had been the custom in Massachusetts. Although there were no written reports of decisions to rely on, the court in Alcock's case was able to follow its own precedents on this point. Samuel Fitch, whose role in the case is unclear, because he was not counsel of record for either party, pointed out that the local practice had been approved in a case on a New York bill argued in 1755. Samuel Winthrop, Clerk of the Superior Court, Ezekiel Price, a notary public, who had been Clerk pro tem in 1755, and Ezekiel Goldthwait, also a notary and Clerk of the Inferior Court, confirmed the custom.4
Argument followed on the question whether the percentage should be allowed in this case. It was urged by Otis and Gridley that no distinction was made in England between foreign and inland bills as to damages, or that in the alternative a bill drawn on New York should be treated as a foreign bill, the same considerations of distance and difference in practice being present. Auchmuty contended that there was a distinction at common law but does not seem to have argued directly on the question whether New York bills were to be regarded as foreign.
The court decided that 10 percent should be allowed, and the jury brought in a verdict which complied with this ruling.5 According to Adams' note, Justice Benjamin Lynde found that the bills involved were not inland bills. It is not clear whether he was articulating the opinion of the court on this point, or whether the majority held that damages were available regardless of the nature of the bill. This would have been the { 170 } result by statute in England, but it was doubtful that the Acts in question applied in the colonies, and the issue does not seem to have been raised in argument.6
Alcock v. Warden was consistent with later developments in the American law of negotiable instruments. In 1809 the Massachusetts Supreme Judicial Court, in an opinion by Chief Justice Theophilus Parsons, recognized the rule of damages followed here as “a part of the law-merchant of the commonwealth,” and applied it in the case of a protested bill payable in England.7 A similar rule, awarding percentage damages on bills drawn or endorsed within the Commonwealth and payable outside the United States, was adopted by statute in 1826, and many other states followed suit.8 The question of damages on a protested bill drawn in one state and payable in another was rendered doubtful in the first years of the 19th century by a split of authority as to whether such a bill was “foreign” or “inland.” No early decision on this point has been found in the Massachusetts Reports, but in view of Alcock v. Warden an ambiguous passage in Dane's Abridgment should probably be read to mean that damages could be had, whatever the label applied to the bill.9 An Act { 171 } of 1819 settled the matter, providing that on bills drawn in Massachusetts and payable in another state a percentage varying according to the distance of the state from Massachusetts should be awarded as damages. Similar rules were adopted by statute and at common law in other states.10
Although somewhat atrophied in use, the Massachusetts statutes just referred to remained in force until 1958, when they were repealed in the adoption of the Uniform Commercial Code.11 The Code does not deal expressly with the question of damages raised here, but it does provide that “Unless displaced by the particular provisions of this chapter, the principles of law and equity, including the law merchant ... shall supplement its provisions.”12 Perhaps Alcock v. Warden is again good law in Massachusetts.
1. See the bills, protest, writ, and Inferior Court judgment in SF 100780. The bills were in identical amounts, payable to James Warden or order, one at 32, the other at 33, days after sight. The declaration contained a count on each bill, setting forth the instrument and alleging that on the
“8th day of June A.D. 1765 at Boston aforesaid the said James Warden before the payment of the said sum or any part of it, made his Indorsement on the said Second Bill of Exchange [i.e. second copy of this bill] and thereby for value received ordered and directed the said sum of one hundred and ninety three pounds six shillings and eight pence New York currency to be paid to the said Joseph Alcock, and afterwards, viz, on the Sixteenth day of September A.D. 1765, at New York aforesaid, the said Second Bill of Exchange was presented to the said John Alexander & Company [the drawee] and they were then and there requested to accept the said Second Bill of Exchange and to pay the said sum ... to the said Joseph Alcock according to the tenour of the said Bill of Exchange and indorsement, and the said John Alexander & Company then and there refused to accept the said Second Bill of Exchange or to pay the said sum ... tho the said first Bill [i.e. the first copy] was not accepted or paid, wherefore afterwards, that is to say on the same sixteenth day of September A.D. 1765 the said Second Bill of Exchange was for want of acceptance and payment at New York aforesaid in due form protested, and of all this the said James Warden at Boston aforesaid by the same Joseph Alcock had notice and thereupon became chargeable to the said Joseph Alcock for the said sum ... equal to the sum of one hundred forty five pounds lawful money with all damages costs interest and charges whatever amounting with the principal to the sum of two hundred pounds lawful money, and in consideration thereof the said James Warden then at Boston aforesaid promised the said Joseph Alcock to pay him the same sum ... on demand.” Ibid.
 The form is very similar to that given in Joseph Chitty, A Treatise on the Law of Bills of Exchange 239–241 (London, 1799).
2. As to the common law rule, see note 186 below. For interest and re-exchange see Chitty, Bills of Exchange 213–218; Brannan's Negotiable Instruments Law 1263–1264 (Cincinnati, 7th edn., F. K. Beutel, 1948); John W. Daniel, Treatise on the Law of Negotiable Instruments, 3:1749–1762 (N.Y., 7th edn., T. H. Calvert, 1933).
3. For the rule in other colonies, see note 175 below. The practice was not followed in England, except for bills returned from India. See Chitty, Bills of Exchange 217.
4. See note 142 below.
5. Min. Bk. 81, SCJ Suffolk, Aug. 1766, N–4; SCJ Rec. 1766–1767, fols. 93–94. The verdict was for £336 17s. 6d. and costs of £7. This figure was the sum of the face value of the bills, £290; 10 percent of the sum, £29; and interest at 6 percent from the date of protest, £17 17s. 6d.
6. For the statutes, see note 186 below. Although damages could be had on an inland bill under these Acts in England, re-exchange would not have been included, because there was no currency exchange factor in the transaction. See John Bayley, A Short Treatise on the Law of Bills of Exchange 45–46 (London, 1789). The flat percentage used in Massachusetts was not tied to re-exchange, however, so that on a broad reading it could have been awarded as damages even on an inland bill. But compare note 9 below. Since there was a difference between the currencies involved, when the bill was payable in another province, such a rule was not inequitable in this case, whether the bill was called “inland” or “foreign.”
7. See Grimshaw v. Bender, 6 Mass. 157, 161 (1809):
“But the rule of damages, established by the law-merchant [i.e. interest, charges, and re-exchange], is in our opinion absolutely controuled by the immemorial usage in this state. Here the usage is, to allow the holder of the bill the money for which it was drawn, reduced to our currency at par, and also the charges of protest, with American interest on those sums from the time when the bill should have been paid; and the further sum of one tenth of the money for which the bill was drawn, with interest upon it from the time payment of the dishonoured bill was demanded of the drawer. But nothing has been allowed for re-exchange, whether it is below or at par. This usage is so ancient, that we cannot trace its origin; and it forms a part of the law-merchant of the commonwealth. Courts of law have always recognized it, and juries have been instructed to govern themselves by it in finding their verdicts.”
8. The statute provided 5 percent damages if the bill was drawn on a country not in Asia or Africa, otherwise 20 percent. See Act of 4 March 1826, c. 177, §1, Mass. Laws, 1826, p. 315–316. For the practice in other states, see Brannan's Negotiable Instruments Law 150, 200–201, 1263–1264; Theophilus Parsons, A Treatise on the Law of Promissory Notes and Bills of Exchange, 1:655–661 note (Phila., 2d edn., 1876); Annotation, 27 A.L.R. 1189 (1923).
9. See 1 Dane, Abridgment 420 (1823): “The amount recovered on a protested bill.... This sum in Massachusetts [before the 1819 Act, note 10 below] was principal, interest, ten per cent, damages, and costs on foreign bills generally, and interest and costs on inland bills, and this rule extends to bills drawn in one State on merchants and others in another State.” The split of authority was finally resolved by Buckner v. Finley, 27 U.S. (2 Peters) 586 (1829), holding an interstate bill “foreign” for purposes of a statute limiting federal circuit court jurisdiction of choses in action to foreign bills. See also 3 Kent, Commentaries 63 note (N.Y., 1828). Massachusetts soon followed Buckner. Phoenix Bank v. Hussey, 12 Pick. (Mass.) 483 (1832) (Interstate bill is “foreign” and drawers could not be charged without a protest). The rule was expressly adopted in the Uniform Negotiable Instruments Law. NIL, §129; Mass. G.L. (Ter. edn., 1932), c. 107, §152. See William E. Britton, Handbook of the Law of Bills and Notes 583–585 (St. Paul, 2d edn., 1961).
10. The Massachusetts Act of 1819, ch. 166, Mass. Laws, 1819, p. 263–264, was entitled “An Act regulating Damages on Inland Bills of Exchange.” Its terms embraced “any Bill of Exchange drawn or endorsed within this Commonwealth” and payable in another state, which had been “regularly protested.” For practice in other states, see sources in note 8 above.
11. See Mass. G.L., c. 107, §§9, 11, repealed effective 1 Oct. 1958 by Acts, 1957, c. 765, §2. No case has been found construing or applying c. 107, §11, the interstate bills provision. As to §9, the overseas provision, see Foreign Trade Banking Corp. v. Cosmopolitan Trust Co., 240 Mass. 413, 134 N.E. 403 (1922).
12. Uniform Commercial Code, §1–103, Mass. G.L., c. 106, §1–103 (as amended, 1957) The Code shows an intent to abandon distinctions between interstate and intrastate instruments by requiring protest only for bills drawn or payable outside the United States. The holder of other kinds of instruments may protest at his option, however. UCC, §3–501(3). There would thus seem to be no obstacle to an award of damages on an interstate bill if some rule of law expressly provided for it. The Code provisions limiting the drawer's and endorser's undertakings to the face of the instrument merely adopt prior provisions of the NIL, which in Massachusetts, at least, had existed side by side with the damages provisions until 1958. See UCC, §§3–413, 3–414; NIL, §§61, 66, Mass. G.L. c. 107, §§84, 89. See also Carmen v. Higginson, 245 Mass. 511, 140 N.E. 246 (1923). According to a leading commentator, the question of damages on foreign bills of exchange was relegated to the Law Merchant by NIL, §196 (Mass. G.L. c. 107, §22), the predecessor of UCC, §1–103. Brannan's Negotiable Instruments Law 1263.

Docno: ADMS-05-01-02-0005-0001-0002

Author: Adams, John
Date: 1766-08

Adams' Report of the Argument1

Suffolk Superior Court, Boston, August 1766
Alcock vs. Warden.
On a Bill of Exchange, drawn on N. York, protested.
Q. made was whether Bill on N. York was a foreign Bill? So as to { 172 } carry 10 Per Cent damages and 6 Per Cent Interest, as a Bill on London.
Fitch reminded Court of the Case of Wimble and Bayard, in which he Said 10 Per Cent was allowed, upon Argument.2 Auchmuty recollected the Case by Pratts introducing a little Book, which no Body else knew. It was Marius on Bills of Exchange, which Holt calls a good Book.3 Winthrop, Price, Goldthwait &c. were enquird of and agreed that 10 Per Cent was allowd.
Otis. Viner. Title, Bills of Exchange. Goldsmith's Note indorsed, is a Bill of Exchange.4 We dont find any Distinction, between inland and foreign Bills, even in England, and the Inconvenience which is the Reason, is greater, in the Case at Bar, than in a Bill in Eng[lan]d protested in any Part of Europe.
Auchmuty. The Custom is not the same in all the Provinces. In Phyladelphia, they allow, 20 Per Cent.5 Here 10.
{ 173 }
Bacons Abridgment. Title Merchant and Merchandize. Of Inland Bills. Page 603.6
Cunninghams Law of Bills of Exchange.7
Gridley. The Foundation of this Damage is, that no Proscess runs from one Kingdom to another—and the Disappointment. Bills of Exchange, saving the Risque and Expence of Carriage, are of such Convenience that the whole commercial World is come into it.8
Court all of a Mind that 10 Per Cent should be allowed. Lynde thought this was not an Inland Bill.
1. In JA's hand. Adams Papers, Microfilms, Reel No. 185.
2. Wimble v. Bayard was an action by the payee against the drawer of a bill for £10 drawn in Boston, which had been dishonored by the drawee at New York in June 1754. The endorsee, who had presented the bill, protested, and the payee paid him £12 2s. at New York. In the Superior Court at the Feb. 1755 term, with Auchmuty and Fitch (but not Prat) as counsel, the jury awarded the payee £12 8s., which would seem to be damages of £2 (20 percent) and interest of 8s. (6 percent for eight months). SCJ Rec. 1755, fol. 22. Min. Bk. 69, SCJ Suffolk, Feb. 1755, N–39. If this analysis is correct, it may be that the award was based on the actual damages sustained by the payee in reimbursing the endorsee under New York practice, which provided a 20 percent premium. See note 175 below. Wimble thus recognized the principle of a flat percentage recovery on a New York bill. Fitch erred in his recollection of the actual figures in the case, but the clerks (text at note 4 above) were probably correctly testifying as to the usual practice in Massachusetts.
3. John Marius, Advice Concerning Bills of Exchange, first published at London in 1651, was considered one of the leading treatises from the practical point of view. See 8 Holdsworth, History of English Law 155–158. For Holt's comment, see Ward v. Evans, 2 Ld. Raym. 928–929, 92 Eng. Rep. 120–121 (Q.B. 1703); compare 3 Kent, Commentaries *125–126. Its later editions were published as part of the 1656, 1685, and 1686 editions of Gerard Malynes, Consuetudo vel Lex Mercatoria (published in Islip), a leading treatise on maritime and mercantile law. 1 Sweet & Maxwell, Legal Bibliography 523–524. JA's copy of the 1686 edition of Malynes, which had belonged to Jeremy Gridley, thus contained the 1684 edition of Marius. Catalogue of JA's Library 158–159. Prat may have cited the work for another purpose, but it does assert the general rule that the drawer or indorser is liable for “Rechange and Costs” on protest for nonacceptance. Marius, Bills of Exchange 28 (London, 4th edn., 1684).
4. 4 Viner, Abridgment, tit. Bills of Exchange, Notes, &c., A, pl. 3: “Goldsmiths Bills are govern'd by the same Laws as other Bills of Exchange, and every Indorsement is a new Bill,” citing Holt's opinion in Hill v. Lewis, 1 Salk. 132, 91 Eng. Rep. 124 (K.B. 1693). Otis' point seems to have been that bills drawn on London goldsmiths, although necessarily inland bills, were not distinguishable from foreign bills. In the cited case Holt had actually been dealing with the questions of the liability of an endorser upon the default of the drawer and the length of time that should be allowed the holder before presentment.
5. The rule in Philadelphia was established for bills drawn or endorsed upon England or Europe by the Act of 27 Nov. 1700, c. 70, 2 Pa. Stat. 86, which provided that when such bills were returned “unpaid with a legal protest,” the parties liable should pay the face of the bill, “together with twenty pounds per cent advance for the damage thereof.” See Francis v. Rucker, Ambl. 672, 27 Eng. Rep. 436 (Ch. 1768); Morris v. Tarin, 1 Dall. 147 (Pa. C.P. 1785). Similar practice seems to have been followed in Rhode Island by statute and in New York by custom. The premium in the former colony was 10 percent, and in the latter 20 percent. See Brown v. Van Braam, 3 Dall. (3 U.S.) 344, 346–348 (1797); Hendricks v. Franklin, 4 Johns. (N.Y.) 119 (1809); Herbert Alan Johnson, The Law Merchant and Negotiable Instruments in Colonial New York, 1664 to 1730 39–40 (Chicago, 1963)
6. 4 Bacon, Abridgment 603: “Inland Bills of Exchange are those drawn by one Merchant residing in one part of the Kingdom, on another residing in some City or Town within the same Kingdom; and these also being found useful to Trade and Commerce, have been established on the same Foot with foreign Bills: but at Common Law they differed from them in this, that there was no Custom of protesting them, so as to subject the Drawer to Interest and Damages in Case of Non-payment, as there was on foreign Bills.” Bacon went on to quote at length the statutes, 9 & 10 Will. 3, c. 17 (1698), and 3 & 4 Ann., c. 9, §§4–8 (1704), which remedied the latter “Inconveniency” by providing for the payment of “costs, damages, and interest,” by the drawer on bills over £20 if protest was duly made. Since the Act of 9 & 10 Will. 3 was expressly limited to bills drawn in England, Auchmuty is apparently arguing on the assumption that the common law rules as to inland bills still applied in Massachusetts. As to the effect, see note 6 above. See generally J. Milnes Holden, The History of Negotiable Instruments in English Law 52–55 (London, 1955).
7. Timothy Cunningham, The Law of Bills of Exchange (London, 2d edn., 1761). At p. 15–20 Cunningham quoted Bacon, note 186 above, and stated a case construing the statutes. Since much of Cunningham's text is similarly drawn from Bacon, Auchmuty may have cited him here merely by way of confirmation.
8. Compare the dictum of Parker, C.J., in Adams v. Cordis, 8 Pick. (Mass.) 260, 265–266 (1829): “The ground upon which the original usage and the statute provisions have been adopted [i.e. those in note 8 above], is the great inconvenience and derangement of business which may occur, in consequence of the disappointment in regard to funds relied upon, where a bill is drawn upon a foreign country.”

Docno: ADMS-05-01-02-0005-0002-0001

Editorial Note

This case throws some light on the conduct of business in Boston in the middle 1760's, but it is primarily of interest for the pleading problem which it presents. James Apthorp, younger son of a leading Boston mercantile family, and William Gardiner, in the course of breaking up their business partnership in 1763, had made an agreement under seal which provided among other things that Apthorp would “pay all debts that are now or may hereafter become due from said company to any person or persons whomsoever for any matter, cause or thing whatsoever, and [would] forever hereafter indemnify and save harmless the said William Gardiner, his Executors and Administrators, of and from all debts and demands now due or that hereafter may become due from said company on any account whatsoever.”1
Apparently Apthorp had not succeeded in meeting all of the “company's” obligations, for early in 1765 Trecothick & Thomlinson, London merchants, advised Gardiner that his old firm owed them £6949 7s. 11d. sterling, plus interest. The letter pointed out that no remittance had been received on the account, “Mr. Apthorp's efforts having as we apprehend been bent to reduce other ballances,” and added that “we have good reason to believe that the greatest part if not all the other demands on Messrs. Apthorp & Gardiner are paid off.” This rather knowing tone is perhaps explained by the fact that the Apthorp family had had a long commercial and personal relationship with Trecothick & Thomlinson. Apthorp's father and brother were at different times in partnership with the firm, and his sister Grizzel was married to Barlow Trecothick, once a Boston merchant, soon to be Lord Mayor of London.2
In 1766 Gardiner brought suit against Apthorp in the Suffolk Inferior Court, alleging that the “demand” from Trecothick & Thomlinson was a breach of the foregoing covenants, in that “the said James though requested hath not paid all the debts that were then and [are] now due from the company nor hath he the said James though requested indemnified and saved harmless him the said William of and from all debts and demands that were then ... and are now due from said company ... and the said William is still held and obliged to pay the [debt] and never discharged or indemnified therefrom by the said James ... to the damage of the said William as he says the sum of twelve thousands pounds lawful money of Great Britain” (Document I).
{ 175 }
Apthorp's plea to the declaration was a form of specific traverse technically known as non damnificatus, in which he asserted “that the said William hath not been damnified by any demand made upon him by Messrs. Trecothick & Thomlinson or in any manner” (Document II). Gardiner demurred to the plea in a lengthy special demurrer (Document III). The gist of his attack was that the plea did not answer the separate allegation of a breach of the promise to pay debts. In the alternative he asserted that if the plea were taken as an answer to this breach, it was bad because it was not a direct contradiction of the allegation. It thus violated the rule that pleadings must not be argumentative and must not contain a “Negative Pregnant.”3
After several continuances the court in July 1767 found for Gardiner on the demurrer.4 On appeal to the Superior Court the point was argued again at the March term 1768, with Robert Auchmuty and James Otis appearing for Gardiner, and Samuel Fitch and Jonathan Sewall for Apthorp. Although Adams was not of counsel, the questions involved apparently interested him greatly, for he made extensive minutes of the arguments and of the court's ruling (Document IV). That his minutes were taken down on the spot appears in the verbatim phrases from cases read to the court by counsel, which Adams copied with a keen ear, but often without regard to relevance.
The issue argued was a rather fine point of pleading, but it is a good demonstration of the way in which such heroic struggles over form could often represent the actualities of the case. In pleading non damnificatus, Apthorp was trying to put in issue the only point which he could hope to establish on trial, that Gardiner had not been harmed because he had never actually paid or even been sued for the debt due to Trecothick & Thomlinson. Behind the barrage of technical arguments there thus lay one substantial question: did Apthorp bind himself only to indemnify and save Gardiner harmless, either by reimbursing him after he had paid a debt, or by defending any suit brought on it? Or was Apthorp to pay the debts as they arose? If the former, then non damnificatus, amounting to performance of the covenant,5 was a good plea, for Gardiner had in fact been indemnified. If the latter, then the plea was subject to all the technical defects which Auchmuty ascribed to it.
In spite of Fitch's very modern-sounding argument that, whatever its language, the real purpose of the agreement was only to indemnify, the court found that, notwithstanding its generality, the contract embodied a separate promise to pay debts. Since the mere breach of the promise to pay debts would give rise to damages without a showing of special harm, the absence of harm would have served no better as a defense on the trial than it did as a pleading.
On the subsequent trial of the issue of damages, the jury brought in a { 176 } special verdict which raised this question in another form. They awarded Gardiner £12,000 sterling, the full amount set forth in his ad damnum, if the court found that he was “entitled to recover full damages for the debt ... though [he] was not actually sued therefor nor paid the same.” If he was not entitled to full damages, then the jury found that he should receive the amount of the debt, plus interest, which amounted to £8,290 2s. 5 2/3d. At the August term 1768 the court held that the damages were in the lesser amount.6 The facts that Apthorp had sought to plead in bar to the action thus at least served to limit Gardiner to a recovery for the breach of the promise to pay debts, with no additional damages for a failure to indemnify. While even this result may seem to give Gardiner a windfall, it is in accord with modern authority.7
Gardiner's victory seems to have been a hollow one. After a motion for new trial on the grounds of excessive damages that was either denied or withdrawn, Apthorp's counsel entered an action of review, which remained on the docket of the Superior Court until February 1778 when it was finally discontinued by agreement on terms which do not appear. After the 1768 decision, execution had issued, but the court files show that it was returned unsatisfied. Apthorp had been declared an insolvent debtor in February 1768 and had apparently succeeded in winding up his affairs in time to evade Gardiner's demands.8
1. SF 101250. See text at notes 9–121–4 below.
2. For the correspondence, see SF 101250. As to the Apthorps, see Wendell D. Garrett, Apthorp House 1760–1960 4–8 (Cambridge, Mass., 1960); John Wentworth, The Wentworth Genealogy, 1:512–520 (Boston, 1878). See also a mortgage assigned by James Apthorp to Barlow Trecothick for £151, on 15 Dec. 1767, in SF 145409.
3. That is, an affirmative implication. See No. 13, note 9.
4. See the Inferior Court judgment in SF 101250.
5. See Stephen, Pleading 364.
6. See SCJ Rec. 1767–1768, fols. 352–356. For the special verdict, see SF 101250.
7. Samuel Williston and George J. Thompson, A Treatise on the Law of Contracts §§1408–1409 (N.Y., rev. edn., 1937).
8. Fitch's motion “That the Verdict may be set aside for Excessive Damages, and no Judgment Entered thereon, That a new Tryal may be granted-and that he may be heard thereon,” is in SF 101250. It was filed, but no action was noted. See SCJ Rec. 1767–1768, fol. 350; for the review, see Min. Bk. 86, SCJ Suffolk, March 1769, N–42; Min. Bk. 103, SCJ Suffolk, Feb. 1778, C–1; SF 102582. For the execution, see SF 115949. As to Apthorp's insolvency, see 4 A&R 798; compare the assignment mentioned in note 2 above. He later settled in Braintree, where he died in 1799. 1 Wentworth, Wentworth Genealogy 520; Pattee, Old Braintree and Quincy 60, 416, 623.

Docno: ADMS-05-01-02-0005-0002-0002

Author: Auchmuty, Robert Jr.
Author: Otis, James Jr.
Date: 1766-09-12

Writ, Declaration and Return1

Suffolk Inferior Court, Boston, October 1766
sealSuffolk Ss. George the Third by the Grace of God of Great Britain France and Ireland King Defender of the Faith &c.
To the Sheriff of our county of Suffolk his Undersheriff or Deputy Greeting. We command you to Attach the Goods or estate of James Apthorp of Boston within our county of Suffolk merchant to the value { 177 } of ten thousand pounds lawful money of Great Brittain and for want therof to take the Body of the said James if he may be found in your precinct and him safely keep so that you have him before our Justices of our Inferior Court of Common pleas next to be holden at Boston within and for our said county of Suffolk on the first Tuesday of October next, then and there in our said Court to answer to William Gardiner late of said Boston merchant in a plea of covenant broken, for that by a deed of Indenture made and executed at Boston aforsaid on the first day of January A.D. 1763 by and between the said James of the one part and the said William by the name of Wm. Gardiner of Hartford in the county of Hartford and Colony of Connecticut merchant on the other part, one part of which said Deed of Indenture of that date sealed with the seal of the said James shall be in court produced,2 he the said William in consideration of the sum of twenty six hundred pounds lawful money of the Province of the Massachusetts Bay to him in hand paid by the said James in notes of hand payable to the said James and William in company, and in consideration of the covenant in said Deed contained on behalf of the said James, did release and quit claim to the said James as well all the agreements and covenants contained in certain articles of copartnership between him the said James and the said William as well as all his the said Williams right title claim Interest and demand of in and to the Goods, Moneys, effects, debts (except the notes aforsaid) that were then belonging or due to the said James and William in company. And further the said William by said deed of Indenture did then and there covenant to and with the said James that he the said William would pay one half the expences attending the shipping of all the English goods that then were at Hartford aforsaid belonging to the said company to Boston aforsaid and would in case of any loss [that] should arise on such Goods by shipping the same as aforsaid bear one half of all such losses, and that he the said William would deliver to the said James all the monies notes papers books and goods belonging to said company (except the notes before excepted) as soon as he the said William conveniently could that were then in his possession, and { 178 } would from time to time deliver to the said James all such moneys, notes, bonds, papers, and goods (except the notes before excepted) as should come to his the said Williams hand and possession that belonged to the said company, he the said James paying the charges thereof, if any there should be. In consideration whereof the said James did then at Boston aforsaid by said deed of Indenture among other things covenant with the said William that he the said James would on or before the first day of January A.D. 1764 pay and deliver to the said William the further sum of three thousand five hundred and thirty three pounds six shillings eight pence like money in good notes on interest that should then be due and payable on demand, and that he the said James would make good and pay to the said William all such sums of money as should not be recovered by and paid to the said William in the same notes which he the said James should put into his the said Williams hands for the payment of the said sum of three thousand five hundred and thirty three pounds six shillings and eight pence; that he the said James would make good and pay to the said William all losses that should or might arise on any or all of said last mentioned notes, and also that he the said James would pay all the debts that were then or should thereafter become due from said company to any Person or persons whomsoever for any matter cause or thing whatsoever and would for ever thereafter indemnify and save harmless the said William of and from all debts and demands then due or that might thereafter become due from the said company on any account whatsoever.3 And the said William did at said Boston on the said first day of Jany. A.D. 1763 by said deed of Indenture further covenant with the said James that he the said William, in case the money due on any of the said notes should not be paid within six months after the same should be demanded by the said William, that then he the said William would cause the same to be sued for and would prosecute all such suits and obtain Judgment as Soon as he could for the recovery thereof, and would do his endeavour to obtain satisfaction of all such Judgments, and in case he the said William should neglect to prosecute as aforsaid then he should take the risque of the payments of all such notes upon himself and bear the loss, if any, accrued. And that the said James by said deed of Indenture then, viz., on the first day of Jany. A.D. 1763 at Boston aforsaid, did further covenant with the said William that in case the { 179 } said William should put any of the last mentioned notes in suit and should not finally obtain full satisfaction thereof in money but should be obliged to levy his the said Williams execution on and take real estate in discharge of all or any part of the same, then he the said James would after notice thereof pay to the said William at said Williams election other notes on interest due in the year A.D. 1764 the amount of what he the said William should so take in real estate as aforsaid. And the said William then, to wit on the said first day of Jany. A.D. 1763 at Boston aforsaid, by said deed of Indenture did further covenant with the said James that he the said William would quit claim to the said James all the right and title that he the said William should have in any such real estate so taken as aforesaid, the said James requiring it and being at the cost of the conveyance.4 Now the said William in fact saith that he hath well and truly performed and fulfilled all and singular the covenants contained in said deed of Indenture on the part of the said William to be performed and fulfilled according to the true Intent and meaning of the same, yet the said James tho requested hath not paid all the debts that were then and now due from the company, nor hath he the said James tho requested indemnified and saved harmless him the said William of and from all debts and demands that were then, to wit on the said first day of Jany. A.D. 1763, and are now due from said company. For that on the twenty fifth day of Jany. A.D. 1765 there was due from said company to Messrs. Trecotheck and Thomlinson the sum of six thousand nine hundred and forty nine pounds eleven shillings and seven pence sterling with interest from the said James and William in company as aforsaid, which said sum and the interest thereof then at Boston aforsaid by the said Messrs. Trecothick and Thomlinson was demanded of the said William as one of the said first mentiond company, and the said William is still held and obliged to pay the same and never discharged or Indemnified by the said James therefrom. So the said James his covenants aforsaid hath not kept but broke the same to the damage of the said William as he says the sum of twelve thousand pounds lawful money of Great Britain which shall then and { 180 } there be made to appear with other due damages. And have you there this writ with your doings therein. Witness Eliakim Hutchinson Esq. at Boston this twelfth day of September in the sixth year of our Reign Annoque Domini 1766.
[signed] Middlecott Cooke Cler.
[signed] Auchmuty5
For want of Goods or estate to Attach of the within named James Apthorp I took his Body and have taken bail to Respond the action at time and Court within mentiond.
[signed] per Benja. Cudworth Dep. Sheriff
1. SF 101250. Subscribed: “Copy examined, Middlecott Cooke, Cler.” Minimal punctuation has been supplied.
2. A copy of the agreement, signed, sealed, and delivered by Apthorp in the presence of witnesses on 1 Jan. 1763, is in SF 101250. It begins with a recital that “Whereas there has been and still is subsisting between [Apthorp and Gardiner] a Copartnership as may appear by the Articles of Copartnership duly executed between the said partners on the tenth day of January Anno Domini 1759, and whereas by the mutual consent of [Apthorp and Gardiner] and in consideration of the covenants and agreements hereinafter mentioned said Copartnership is from the [date] of these presents to be dissolved—Now this Indenture witnesseth.” The remainder is in substance as pleaded, with exceptions noted below.
3. For the wording of this passage in the actual agreement, see text at note 1 above. The agreement adds: “and the said James Apthorp doth Hereby release and quit claim unto the said William Gardiner all the Agreements and covenants contained in the said Articles of copartnership.” SF 101250.
4. The agreement adds:
“And the said James Apthorp doth hereby further covenant with the said William Gardiner that he the said James Apthorp will if required sign and duly execute to the said William Gardiner good and sufficient power or powers of Attorney in Law if required by the said William Gardiner to enable him the said William Gardiner to recover any of the last mentioned notes and in case any suits should be commenced in his the said James Apthorp's name or in the name of the said William Gardiner upon any of the last mentioned notes the said James Apthorp will pay the reasonable expence of prosecuting the same to final Judgment.” SF 101250.
5. That is, the writ was endorsed by Robert Auchmuty.

Docno: ADMS-05-01-02-0005-0002-0003

Author: Fitch, Samuel
Date: 1767-07


Suffolk Inferior Court, Boston, July 1767
And the said [James] comes and defends &c.,2 and saith that the said William hath not been damnified by any demand made upon him by Messrs. Trecothick & Thomlinson or in any manner as the said William in his Declaration hath alledged and supposed and thereof the said James puts himself on the countrey.
[signed] Saml Fitch
1. SF 101250. On the same page with the return (Doc. I). Dated from the Inferior Court judgment, ibid.
2. See p. 43, note 3822, above.

Docno: ADMS-05-01-02-0005-0002-0004

Author: Auchmuty, Robert Jr.
Author: Fitch, Samuel
Date: 1767-07

Special Demurrer and Joinder1

Suffolk Inferior Court, Boston, July 1767
William Gardiner v. James Apthorp
And the said William says that the plea aforsaid pleaded by the said James in manner and form afore pleaded and the matter in the same contained are insufficient in Law and that he the said William to that plea in manner and form aforsaid pleaded hath no necessity nor is bound by the Law of the Land in any way to answer and this he is ready to verify wherefore for want of a sufficient plea in this behalf the said William prays Judgment and the damages by reason of the premises to be adjudged to him and costs.
And for causes of demurrer in Law in this behalf according to the { 181 } form of the Statute in such case made2 he sets down and to the Court here expresses the causes following
Because the said James in his plea aforsaid hath not answered one of the breaches assigned in said declaration by said William in the words following to wit “yet the said James tho requested hath not paid all the debts that were then or now due from the said company.”
Because the said James in his said plea hath pleaded “that the said William hath not been damnified by any demand made upon him by Messrs. Trecothick & Thomlinson or in any manner as the said William in, his declaration hath alledged and supposed and thereof the said James put himself on the countrey” but hath not in his said plea given any answer to the breach of covenant contained and set forth at large in the said Williams declaration against the said James for not paying all the debts that were due from the said James and William in Company
Because the said William in his said declaration alledges that the said James covenanted with the said William “that he the said James would pay all the debts that were then or should thereafter become due from said company to any Person or Persons whomsoever for any matter cause or thing whatsoever” and the said William afterwards in his said declaration further alledges as a breach of said covenant that the said James tho requested hath not paid all the debts that were then or now (meaning at the time of making said covenant and the purchase of said writ) due from the said company and the said William further alledges in said declaration that on the twenty fifth day of January AD. 1765 there was due from said company to Messrs. Trecothick & Thomlinson the sum of six thousand nine hundred and forty nine pounds eleven shillings and seven pence sterling with interest from the said James and William in company as aforsaid yet the said James in his plea aforsaid hath not in any manner answered the said breach of covenant declared on in manner as aforsaid by the said William in his said declaration.
Because the said James in his said plea hath not alledged that { 182 } he hath paid all the debts that were due from the said company and shewn in particular how and when as by Law he ought to have done
Because the said William in his said declaration hath alledged that the said James tho requested hath not paid all the debts that were then or now due from the said company nor hath the said James tho requested indemnified and saved harmless him the said William of and from all debts and demands that were then to wit on the first day of January AD. 1763 and are now due from the said company for that on the twenty fifth day of January AD. 1765 there was due from said company to Messrs. Trecothick & Thomlinson the sum of six thousand nine hundred and forty nine pounds eleven shillings and seven pence sterling with interest from the said James and William in Company as aforsaid which said sum and the interest thereof then at Boston aforsaid by the said Messrs. Trecothick & Thomlinson were demanded of the said William as one of the first mentioned company and the said William is still held and obliged to pay the same and never discharged or indemnified by the said James therefrom and the said James in his said plea hath pleaded that the said William hath not been damnified by any demand made upon him by Messrs. Trecothick & Thomlinson or in any manner as the said William in his said declaration hath alledged and supposed and thereof the said James puts himself on the countrey and so the said James in his said plea hath given a negative answer only to the aforsaid breach assigned by the said William in his said declaration which is also in the negative and therefore the said James hath not tendred to the said William any proper issue to join and yet the said James hath concluded his said plea to the countrey. Which he ought not to have done but ought to have concluded his said plea with a verification of the same and prayed Judgment if the said William ought to have and maintain said Action against him the said James whereupon the said William might have replied and shewed forth other and special damnification.
Because the plea of the said James is too general and argumentative and informal and not direct and certain for in said plea the said James alledges that the said William hath not been damnified by any demand made upon him by { 183 } Messrs. Trecothick & Thomlinson or in any manner as the said William in his declaration hath alledged and supposed which is not a direct and positive negation of a demand made upon the said William by the said Messrs. Trecothick & Thomlinson as set forth in said declaration but is an argumentation and too general an answer to the said declaration because if there was not a demand made upon the said William as aforsaid then he could not be damnified thereby and if there was then the said James in his said plea traverses the damnification resulting therefrom to the said William. And the said William further says that the plea of the said James by him recorded as aforsaid is inconsistent incertain not issuable and wants form.
[signed] Robt. Auchmuty
And the said James says that the plea aforsaid by him in manner aforsaid pleaded and the matter therein contained are good and sufficient in Law to preclude him the said William from his action aforsaid against him the said James which plea the said James is ready to Verify &c. and because the said William doth not answer to that plea nor hitherto any ways deny the same he the said James prays Judgment that the said William may be precluded from his action aforsaid against him and he be allowed his Costs.
[signed] Saml. Fitch
1. SF 101250. Subscribed: “Copy Examined. Middlecott Cooke, Cler.” Dated from the Inferior Court judgment, ibid.
2. That is, the statute, 4 Anne, c. 16, §1 (1705), which provided that on demurrer the courts would look to defects of form only when expressly stated with the demurrer.

Docno: ADMS-05-01-02-0005-0002-0005

Author: Adams, John
Date: 1768-03

Adams' Minutes of the Argument1

Suffolk Superior Court, Boston, March 1768
James Apthorp vs. Gardiner, William.
Covenant Broken. Plea.
Special Demurrer. 1. 2. 3. 4.
Joinder in Demurrer.
Auchmuty. 2 Breaches assigned in Declaration by Plaintiff. 1. 2. not indemnifying. Plea is that Plaintiff was not damnifyd by any Demand from Trecothick & Thomlinson.
The 3 first Reasons in the Special Demurrer, are to the same Point. —Tro.2
Holts Reports. Page 206. Annersley vs. Cutter. 2nd. Exception is that he did fit him to be Master of Arts. As to the first the Plea is good. { 184 } Scismaticus inveteratus. Pleas adjudgd bad because not shewn who maintained him, from the Time of Batchelor till Master. Incompleat Plea.3
1. Salk. 179. Weaks vs. Peach. Replevin for. Plea an Answer to Part and whole.4 2 Breaches in the Declaration, but one answerd in the Case at Bar. They come and defend &c. i.e. take the whole Defence upon them, and then go on, and answer but one Cause of Action. All Declarations must have compleat Answers.
4th. Objection to the Plea—that he has not in his Plea set forth that he had paid the Debts, and how and when and where &c. 3d. Inst. Cler. 522. Covenant to indemnify and save harmless, ought to shew how he saved harmless.5 Our Breaches are that he hath not paid, and hath not saved harmless. An Issue cannot be made out of two Negatives any more than out of two Affirmatives.
Infregit Conventionem. 3. Levinz. 19. Pitt vs. Russell. Breach assigned in the Negative and Plea in the Negative.6
{ 185 }
Cro. Car. 316. Non Debet. Oyer. Payment at Day. Court if issue joined aided by Statute Jeofails, 'tho upon Demurrer bad.7
Informal, argumentative, &c. Too general, not direct and certain. A Negative Pregnant. Cro. Jac. 559. Lee vs. Luther. Pleaded in the Negative that he had not, &c. Plaintiff demurred.
Negativa pregnans. 1st. Argument. 1st. Cause.8
Ours is non Payment, we in the Reason of the Case and therefore the Case must uphold us. These are the Exceptions and these the Authorities to support them. Negative answers to Negative Breaches. All the Entries, all the Precedents shew the Plea to be bad. Law abhors and detests a negative pregnant. Double Pleadings by the Statute and the Leave of the Court, may be, but no Statute allows of a Negative pregnant.
This Plea concludes to the Country too, which it ought not.9
Fitch. For Defendant Apthorp. Honors have heard Declaration, { 186 } Plea and Exceptions. We have answerd that Gardiner Plaintiff hath not been damnified by any such Demand as he has set forth in his Declaration. The whole Effect of the Covenant is, to indemnify Gardiner, from certain Debts and Demands. 2 Ways of indemnifying, are by Payment, by procuring a Discharge.
This Covenant is only a Covenant to save harmless, and the Effect is the same as a Bond with a Penalty conditioned to save harmless. Non Payment is no Breach, and would be bad upon a general Demurrer.
Saville. Page. 90. Case 167. Anonimous. Debt upon an Obligation. Ought to plead not damnified. Bound to discharge pay and save harmless from Rent. Had Defendant pleaded that Plaintiff was not damnifyed, it would have been good.10 Nothing to distinguish this Case from that of Savilles. This exempts this Case from the Force of every Authority the Gentleman has [presented?].
1. Salk. 196. Griffith vs. Harrison. In some Cases the Intention is traversable. Plaintiff did not shew a Disturbance. Counterbond cannot be sued without a Special Damnification.11
If Plaintiff can support an Action now without a special Damnification, he might have supported one Eo Instante that the Covenant was executed.
Cro. Jac. 634. Horseman vs. Obbins. Debt on obligation Conditiond for Indemnification. Demurred because not shewn quo modo indemnem &c. Being a Plea in the Affirmative, should have shewn quo modo, but if he had pleaded generally that he had not been damnified non damnificatus, it would have been good.12
Cro. Jam. [Jac.] When one pleads a discharge and that he saved { 187 } him harmless he ought to shew how, but if he had pleaded generally non damnificatus it had been good &c.13
3. Mod. 252. Mather vs. Mills. Non Damnificatus and Demurrer. Negative Parish not damnified. Good.14
2. Mod. 305. Shaxton vs. Shaxton. Condition to save harmless, &c. Defendant pleads not damnified, &c.15 Same Principle.
Negative Answer to Negative Breach. This is a wrong Representation. The Words of the Declaration. Covenant. Will save harmless from all Debts due from the Company of Gardiner & Apthorp to Trecothick & Company. They have made use of negative Words, but not to the Purpose. What is our Answer to their Declaration. That they have not been damnified, by any such Demand, which is the only Breach they have alledgd that could support their Action. Concluding in Bar, when the Matter is brought to a plain Affirmation and Negation would be ill, because it tends to protract Pleadings in Infinitum, therefore we concluded properly to the Country.
Jenkins's Centuries Page 110. Case 12. Non Damnificatus a general Issue.16
Sewall run over the same Ground.
Otis. Read Several Authorities, one from Leonard17 and several others, to shew that where there is a Covenant or Bond to save harm• { 188 } less only, there Non Damnificatus will do for a Plea. But where there is Covenant or Bond to pay Rent, to pay Debts, &c. and to save harmless from that Rent, those Debts &c., there Non Damnificatus will not do.
C. J.18 There is no Time sett, when the Payment of the Company Debts shall be made, in the Covenant.
To pay, and shall pay all the Debts, due or that shall hereafter become due.
Difference between an Undertaking, by Covenant or Bond, to pay and save harmless, And an Undertaking to save harmless only.
The Judges of England make a strong Inference from the Silence of Precedents.
Tis a Duty as much when there is no Day fixed as when there is a Day fixed, and the Law says it shall be done in a reasonable Time.
1. In JA's hand. Adams Papers, Microfilms, Reel No. 185.
2. A comment from the bench by Edmund Trowbridge, J.
3. Annesley v. Cutter, Holt K.B. 206, 90 Eng. Rep. 1013 (1706). An action of debt on a bond conditioned on the defendant's educating and maintaining his son “until he had passed all his degrees, and was a Master of Arts.” Plea that the defendant had maintained his son “until he had passed all the degrees that were requisite to fit him to be Master of Arts ... and postea such a Day he became Master of Arts.” Demurrer, asserting (1) uncertainty, in the failure of the plea to detail the degrees obtained prior to that of Master of Arts, and (2) the failure of the plea to state who maintained the son during the three years between his Bachelor's and his Master's degrees. Held, per curiam, that the plea was bad on the second ground asserted. The phrase “schismaticus inveteratus” appears in the report of the case as part of defendant's argument on the first point. It is drawn from a case in quare impedit in which it was held insufficient for a bishop to plead that he had rejected one presented for a benefice merely because the presentee was, literally, an inveterate schismatic. Specot's Case, 5 Co. Rep. 57a, 77 Eng. Rep. 141 (K.B. 1590). The point has some relevance to later portions of the argument in the present case, but is bare dictum in Annesley and is not at all the point for which Auchmuty is citing the case.
4. Weeks v. Peach, 1 Salk. 179, 91 Eng. Rep. 164 (K.B. 1701). Replevin for taking chattels from two different places. Avowry justifying the taking from one place only. Held, per Holt, C.J., that the avowry was demurrable if it purported to answer the entire declaration and answered only part.
5. 3 Gardiner, Instructor Clericalis 522, citing Ellis v. Box, Aleyn 72, 82 Eng. Rep. 921 (K.B. 1648). Condition that third party perform covenants and that defendant save plaintiff harmless. Plea: Performance and that he did save harmless. Demurrer. Held: Plea insufficient, because it should have set forth the covenants, some of which might have been negative, and because it should have set forth with particularity how the defendant saved the plaintiff harmless. Robert Auchmuty's copy of Instructor Clericalis is in the Harvard Law School Library, but throws no further light on this case. See JA's reference to the work in his Autobiography as “used dayly for Precedent.” 3 JA, Diary and Autobiography271. His own copy of Gardiner's work, 5 parts, London, 1713–1727 (pt. 2 missing), is in the Boston Public Library. See Catalogue of JA's Library 100.
6. Pitt v. Russell, 3 Lev. 19, 83 Eng. Rep. 555 (C.P. 1681). Covenant on a lease, assigning breaches in not repairing the premises. Plea: Non infregit conventiones (he did not break the covenants). Demurrer. Held: Plea too general, first, in that several breaches were alleged; second, in that the breach is in not repairing and the plea is not breaking, thus opposing a negative to a negative, which does not make an issue.
7. Parker v. Taylor, Cro. Car. 316, 79 Eng. Rep. 876 (K.B. 1632). Debt upon a loan and upon a bond conditioned on payment at a certain day. As to the loan, the plea was non debet, the general issue; as to the bond, after oyer, the plea was payment at the day. Issue was tendered and joined on each count and the case tried to a jury which found for the plaintiff on the bond and for the defendant on the loan. On writ of error it was argued that the plaintiff should have replied, denying payment and thus properly creating an issue out of an affirmative and a negative. Held: Since issue had been joined on the case as pleaded, and the jury had found that the defendant had not paid, “it is good enough, and aided by the Statute of Jeofayles.” Id. at 317. Auchmuty's apparent conclusion that the plea would have been bad on demurrer is only implicit in the report of the case. The various Statutes of Jeofails provided that certain nonsubstantial pleading defects should not be fatal. See Sutton, Personal Actions 118–120.
8. Lea v. Luthell, Cro. Jac. 559, 79 Eng. Rep. 480 (K.B. 1618). Debt upon a bond on four conditions, one in the negative, to make no further grant of certain premises without the plaintiff's consent. Plea: As to the first three, performance; as to the last, that no grant had been made. On demurrer plaintiff objected, first, that since one of the covenants was the act of a stranger and an act of record, it should have been pleaded specially; second, that, since there were several covenants, performance of each ought to have been pleaded; third, that the plea that no grant was made is a negative pregnant. Held: Plea bad for all these causes, “wherefore it was adjudged for the plaintiff, upon the first argument, especially for the first cause.” Id. at 560. In noting this last phrase, JA may be querying the applicability of the case.
9. That is, it concludes with the form for tender of issue, upon which the plaintiff could only demur or join issue and go to the jury. Auchmuty seems to have the right of this question, since the plea in essence raised new matter that required an answer. See 1 Chitty, Pleading 536; 2 id. at 528–529; Stephen, Pleading 251, 253, 364.
10. Anonymous, Saville 90, 123 Eng. Rep. 1029 (C.P. 1588). Debt on a bond conditioned on a promise to discharge and save harmless from payment of rent, and to pay, discharge, and save harmless from any action brought for rent. Plea: No rent due. Demurrer. Held: Plea bad, because the condition was to save harmless from paying any rent. The proper plea would have been that the plaintiff had not been damnified by the payment of any rent.
11. Griffith v. Harrison, 1 Salk. 196, 91 Eng. Rep. 176 (K.B. 1693). Action on covenant to discharge or indemnify from all arrears of rent, alleging that a certain sum of rent was in arrears. Plea: Payment of part to lessor and part to plaintiff with the intention that it be applied to the lease. Demurrer. Held: Plea probably good, over objection that intention was not traversable. Judgment for defendant because special damages not pleaded. Where the condition is to save harmless from an obligation that will not fall due on a certain day in a certain way, such as “a single Bill without a Penalty, there the Counterbond cannot be sued without a special Damnification. So here, Rent remaining in arrear, and not paid, is not a Damage, unless the Plaintiff be sued or charged.” Id. at 197.
12. Horseman v. Obbins, Cro. Jac. 634, 79 Eng. Rep. 546 (K.B. 1621). The defendant had pleaded that he had indemnified the plaintiff. The court upheld the demurrer on the grounds paraphrased in the text.
13. That is, Codner v. Dalby, Cro. Jac. 363, 79 Eng. Rep. 311 (K.B. 1611), cited in margin in Horseman v. Obbins, note 2912 above. Debt on a bond conditioned to save harmless from bail in a certain action. On demurrer to the plea the court found for the plaintiff substantially in the language reported by JA.
14. Mather v. Mills, 3 Mod. 252, 87 Eng. Rep. 166 (K.B. 1688). Debt on a bond conditioned on acquitting, discharging, and saving harmless a parish from a bastard child. Plea: Non damnificatus. Demurrer. Held: Judgment for defendant, over argument that “acquit and discharge” required a showing as to how the defendant had acquitted and discharged.
15. Shaxton v. Shaxton, 2 Mod. 305, 86 Eng. Rep. 1088 (C.P. 1678). Condition to save the plaintiff and the mortgaged premises harmless and to pay interest. Plea: Plaintiff not damnified because defendant had paid the principal and all arrears of rent due. Demurrer. Held: Plea bad. Goes only to the person of the plaintiff, not to the premises.
16. Anonymous, Jenk. Cent. 110, Case XII, 145 Eng. Rep. 77 (Exch.Ch. 1457). Condition to save harmless. Plea that defendant did save harmless. Demurrer. Held: Plea bad, because the manner of discharge not shown. Non damnificatus, the general issue, would have been a good plea.
17. The case “from Leonard” is undoubtedly Bret v. Audars, 1 Leon. 71, 74 Eng. Rep. 66 (C.P. 1587), an action of debt on an obligation conditioned “to acquit, and discharge and save harmless.” Plea: Non damnificatus. Demurrer. Held: Plea insufficient. The defendant ought to have shown the manner of discharge, since the condition was to discharge. If, however, the condition were to save harmless only, “then non damnificatus generally is good enough.” Id. at 72.
18. Thomas Hutchinson, C.J. Hutchinson's construction is borne out by later authorities, but it seems harsh where the promise to pay debts is in such general terms. See Stephen, Pleading 364–366; 2 Chitty, Pleading 528–529 notes.

Docno: ADMS-05-01-02-0005-0003-0001

Editorial Note

On 22 November 1762, Jeremiah Lee, prominent Marblehead ship owner and merchant, obtained a policy of marine insurance upon one half the cargo of the schooner Merrill for a voyage “from Marblehead to any and all the Islands in the West Indies to Windward of St. Croix, St. Thomas, Havannah and Jamaica until the cargo is sold and delivered.” The Merrill was then 79 days out of Marblehead. The eight underwriters, of whom Jonathan Bancroft was one, did not know that on October 17th, while making for Martinique, she had been taken by a Spanish privateer. When Lee subsequently presented his claim for the loss the underwriters refused payment on grounds of fraud. About a year later, the claim was submitted to arbitration in accordance with a provision of the policy. In November 1763 the arbitrators, Foster Hutchinson, John Rowe, and Melatiah Bourne, returned their unanimous report that Bancroft and six of his fellow underwriters, who had agreed to the submission, were liable in the amounts which they had subscribed.1 These seven made payment { 189 } accordingly. The eighth underwriter, William Shillaber, was less tractable. He had not agreed to the arbitration, and Lee was forced to bring suit against him on the policy. In June 1767 Shillaber finally prevailed in an action of review in the Superior Court.2
Thereafter Bancroft and two other underwriters brought actions against Lee, claiming that the policy was void and demanding return of the payments made under it.3 Bancroft's case, in which Adams was of counsel for Lee, provides some useful insights into the conduct of maritime and mercantile affairs. It also raises an interesting problem of the effect of an arbitration proceeding upon subsequent litigation between the same parties and shows bench and bar applying English authority of most recent date to this question.4
Bancroft's declaration in an action on the case in deceit alleged that Lee had induced the underwriting by his deliberate false affirmation that the insurance was a “fair chance,” and that he had knowingly concealed two circumstances which materially altered the risk: (1) that the master's sailing orders had directed him to proceed to “the Island of Martineco (if he could get in there)”; and (2) that Lee, before the policy was written, “had received certain Intelligence that the said Schooner had not arrived at Martineco ... when she had been gone from Marblehead ... by the space of thirty three days.”5 After Lee prevailed in the Inferior Court on a sham demurrer, Bancroft appealed to the Superior Court, where at Ipswich in June 1769, upon waiver of the demurrer, the case was tried to a jury. Document 1 is Adams' memorandum of authorities on the issues presented by the fact that the vessel was actually lost at the time of the underwriting. Since Lee's policy included the words “lost or not lost,” the underwriters were liable unless Lee had sought the insurance with knowledge of the loss. This question was apparently determined adversely to Lee, because the jury found for Bancroft in the amount paid out, plus interest.6
{ 190 }
Lee then obtained a writ of review, which was first brought on for trial in November 1770, but was continued on the withdrawal of a juror.7 In June 1771 at Ipswich the case came on again, but after Bancroft had put in at least a part of his evidence, it was continued on Lee's motion, the ground not appearing.8 Adams' minutes of this phase (Document II) are largely a summary of the testimony. John Lowell, counsel for Bancroft, after expounding authorities in his favor, produced evidence tending to show that the Merrill had in fact sailed for Martinique. He then sought to establish his allegations as to Lee's concealment of knowledge of the vessel's loss and as to his calling the risk a “fair chance.” The question of knowledge turned on the deposition of one Captain Howard, who had returned to Marblehead two weeks prior to the writing of the policy, reporting that he had heard nothing of the Merrill. Did this report amount to “certain intelligence” of her nonarrival, and was it known to Lee or to the underwriters?
The case was brought to trial a third time in November 1771. Here Adams' minutes (Document III) suggest that after Lowell had concluded his case the court on its own motion raised the problem of the effect of the 1763 arbitration report. In any event the jury was again dismissed and the action continued, this time by order of court.9 While Adams may have raised this question himself, it is interesting to note that this was the first occasion on which Foster Hutchinson, newly appointed to the court, had sat on the case, that he was one of the referees in 1763, and that he seemed to take the lead in dealing with the issue.10
After this continuance Adams and Jonathan Sewall, who with Lowell was of counsel for Bancroft, entered into a stipulation to the effect that if the court found that the report (which had not been pleaded) could be admitted in evidence under the general issue, and found that, if admissible, the report was a bar to Bancroft's action, then Bancroft would default. In June 1772 the court found the report admissible and once again ordered a continuance, doubtless for argument on the second point.11 At Salem in { 191 } November 1772, according to William Wetmore's minutes (Document V), Hutchinson disqualified himself, and, with the other referees, gave evidence concerning the arbitration proceedings. Their testimony as minuted by Adams (Document IV) shows that the questions of the Merrill's actual destination and Lee's knowledge of her apparent non arrival had been raised at the hearing in 1763. The court had at first held that the award without more was not a bar, but on this showing they found that the action could not be maintained, applying the doctrine known today as collateral estoppel.12 A jury which had been empaneled was dismissed, and Bancroft's default was entered in accordance with the agreement.13
1. See the papers in the case, including the policy with the arbitration agreement and report on the verso in SF 131791, 132239. As to Lee, who in dying of a chill contracted while evading the British at Lexington became surely the first politician to give his life in the patriot cause, see 2 JA, Diary and Autobiography61, 172; Samuel Roads, Jr, The History and Traditions of Marblehead 113–114, 351 (Boston, 1880); compare Oliver, Origin and Progress 120.
2. Lee v. Shillaber, Min. Bk. 77, SCJ Salem, Oct. 1764, N–2; Min. Bk. 85, SCJ Ipswich, June 1767, N–14. SF 131138, 131503.
3. The other actions were Crowningshield v. Lee, No. 11, and Goodhue v. Lee. In the Crowningshield case JA was also of counsel for Lee. In Goodhue's case JA has left us no minutes, but the Minute Book of the Superior Court indicates that he was of counsel for Goodhue on the appeal, in which the latter obtained a verdict. Lee v. Goodhue, Min. Bk. 85, SCJ Ipswich, June 1770, N–4. While this change of allegiance may not have been inconsistent with the legal ethics of the time, there is evidence to suggest that it is actually a clerical error. At the trial of the case in the Inferior Court, John Lowell, who had been counsel for Bancroft and Crowningshield, was Goodhue's lawyer, and William Pynchon, who had been Lee's counsel in the other actions, represented him in this one. SF 131923.
4. The first edition of 1 Wilson, note 353 below, did not appear until 1770. 2 Burrow, note 364 below, was first published in 1766, with a second edition in 1771. See 1 Sweet and Maxwell, Legal Bibliography 294, 310.
5. See the declaration in SF 131791, 132239.
6. Min. Bk. 85, SCJ Ipswich, June 1769, N–1. The pleadings and judgment in the Inferior Court, Salem, Dec. 1768, are in SF 131791, 132239.
7. Min. Bk. 85, SCJ Ipswich, June 1770, N–5; Min. Bk. 93, SCJ Salem, Nov. 1770, C–10. Withdrawal of a juror was a means of continuing, or terminating short of judgment, an action in which a jury had been empaneled. It was generally done with consent of all the parties, but, at least in later practice, might be done on the motion of one party on grounds of surprise and the like. The practice also might be allowed where the jury, upon deliberation, could not reach a verdict. See Wood, Institute of the Laws of England 600; cases collected in annotation, 48 L.R.A. 432 (1900). The reason for its use here and the distinction between this practice and the later continuance (note 8 below) are not known.
8. Min. Bk. 93, SCJ Ipswich, June 1771, C–9.
9. Min. Bk. 93, SCJ Salem, Nov. 1771, C–7.
10. Hutchinson first took his seat on the court at the Aug. 1771 term in Suffolk County, although he had been appointed in March. SCJ Rec. 1771, fol. 207. See 2 JA, Diary and Autobiography39.
11. Min. Bk. 93, SCJ Ipswich, June 1772, C–4. See the stipulation in JA's hand and the order (on the wrapper) in SF 132239. The decision to admit the report under the general issue seems in accord with authority. See 1 Chitty, Pleading 486–487; compare 4 Bacon, Abridgment 60–65.
12. See the opinions in Doc. V. The present case is distinguishable from Moses v. Macferlan, note 364 below, because the issues here not only were available to the underwriters, but were raised and determined. For cases in which an award was held to bar the action of the original plaintiff on the same cause of action, see Matthew Bacon, The Compleat Arbitrator 245–249 (London, 2d edn., 1744). The Harvard Law School's copy of this work is inscribed “J. Lowell, 1765.”
13. Min. Bk. 93, SCJ Salem, Nov. 1772, C–4. SCJ Rec. 1772, fol. 189.

Docno: ADMS-05-01-02-0005-0003-0002

Author: Adams, John
Date: 1769-06

Adams' Notes of Authorities1

Essex Superior Court, Ipswich, June 1769
Bancroft vs. Lee.
Bac. 3. 599.2 Tit. Merchant. “Where a Policy is a perfect Cheat as where a Person, having certain Intelligence that a Ship is lost, insures so much, this shall not bind the Insurer.”
Molloy. B. 2, c. 7, §5, bottom.3 “A Merchant having a doubtful Account of his Ship, insures her, without acquainting the Insurers of her danger; Chancery relieved against the Policy of this fraudulent Insurance.”
Ditto. “If the Party, that caused the Assurance to be made saw the ship was lost,4 or had certain Intelligence, such subscription will not oblige, the same being accounted a mere fraud.”
But Yet,
Molloy. B. 2, c. 7, §5. “Those Assurances are most dangerous when these Words are inserted 'lost or not lost'; which is commonly done when a ship hath been long missing and no Tidings can be had, the Premio (especially in Time of War) will run very high, sometimes { 192 } 30 or 40 per Cent, and though it happens at the Time that the subscription is made, the ship is cast away, yet the Assurers must answer.”
1. In JA's hand. Adams Papers, Microfilms, Reel No. 185.
2. 3 Bacon, Abridgment 599. Quotation marks supplied. Italics are JA's.
3. Charles Molloy, De Jure Maritimo et Navali 289 (London, 8th edn., 1744). Quotation marks supplied. Italics are JA's.
4. The original reads “wreckt,” rather than “was lost.”

Docno: ADMS-05-01-02-0005-0003-0003

Author: Adams, John
Date: 1771-06

Adams' Minutes of the Trial1

Essex Superior Court, Ipswich, June 1771
Lee vs. Bancroft. Ipswich June 1771.
Lowell. Cun. 173. Concealment of Intelligence, a Fraud. Each Party ought to know all the Circumstances.2
178.–179. 184.3
79 days from G[ordon's] sailing to the Insurance,4 which was a good Chance to have heard of her Arrival at any Part of the W. Indies.
J. Pedricks Deposition. Gordons Protest. Jab. Harlow's Deposition.5
Captn. Jos. Howard.6 Arrived from M[artinique] 7th. Novr. Saild, 7. Octr. Frenchman arrived from Guadaloupe. Deposition vid.
Mr. Shillibeare.7 I asked whether the Vessells were in Time or { 193 } whether the Chances were fair. A few days after Mr. Hooper8 came into the office and enquired if Lee said nothing of his having a Chance. Then he has taken you in, &c. From 20 to 26 or 27 days a common Chance.9 I would not have wrote under 50 Per Cent. I did not know there was such a Man as C[aptain] Howard. Never heard of his going to the W. Indies. I have been Master, but never was strictly bound up.
C. Hodges. 3 Vessells together.10 Dont remember any Questions put to him. No dispute—all seemd fair. Hooper came in and said We were taken in. Somebody said We should have looked to our Title. Never knew a Policy underwrote without enquiring when the Vessell sail'd. Something said in the office about the Vessells being over[set] before she sail'd. At the Time when Lee was in the Office and Cabbit11 present talking with Lee. It appeared to me to be in Time and a customary Praemium. One said she was fair, in season, in Time. They often take it from the 1st. underwriter [who] enquires the Circumstances. Those that follow sometimes take it for granted.
Jos. Hodges.12 Lee wrote the Minutes himself. Cabbit said fair Chances I suppose. Yes. I Asked how long those Vessells had been out. Lee made a Pause. Lee said the 1st. Advice will give an Account of 2 of em. And it did. 2 were taken. I relyed upon Lees Honour that he would not put in an unfair Chance. 30 days a Chance. I did not know of the Arrival of Howard. I would not have wrote upon any Consideration. Dont remember Powers13 being mentiond. Fellows not mentiond that I remember. Many Vessells at that time had long Passages. Knew Howard was an [Eastern?] Master. But should not have thought to enquire W. India News of him.
Jona. Gardiner Junr. Nothing said of Howards Arrival. I did not know of it. Coll. Lee once scratched his Name out once and said he { 194 } never took desperate Chances, and never put in unfair ones. A Man of Character declaring it is a fair Chance is generally satisfactory.
Jona. Ropes Junr. I underwrote for Pedrick, and was a good Mind to take £20 more for Lee but did not. I did not know of Howards Arrival. I knew when she sailed. But it might be because, We must write on all 3 or none. The Risque not so great when a Number, as on one. Dont know that ever I underwrote first without enquiring when the Vessell sailed, and the Circumstances.
George Dodge.14 C[ol.] Lee said fair Chances. I had underwrote upon Gordon before, and did not know of Howards Arrival. I have made several Voyages in 14 Weeks. Hoopers News was received in the Office with surprise, and uneasiness.
Warwick Palfry. She might have returned and made her Voyage in 79 days. I knew a Vessell that performed 3 Voyages [nearly?] in 10 Weeks and 3 or 4 days.
Saml. Ward. Lee said he never put a Vessell in out of Time and never took a desperate Chance.
Gordons Sailing Orders.15
1. In JA's hand. Adams Papers, Microfilms, Reel No. 185.
2. Timothy Cunningham, The Law of Bills of Exchange, Promissory Notes, Bank Notes, and Insurance 174 (London, 3d edn., 1766). The language here was drawn from two cases in which the facts favored the insurers rather more than in the instant case. See De Costa v. Scandret, 2 P. Wms. 170, 24 Eng. Rep. 686 (Ch. 1723) (Insured had heard that ship looking like his was taken); Seaman v. Fonereau, 2 Str. 1183, 93 Eng. Rep. 1115 (K.B. 1743) (Insured had intelligence that vessel had been leaky and was lost sight of just before a hard gale).
3. That is, Cunningham, Bills of Exchange 178–179, 184, citing Rooke v. Thurmond (unreported, K.B. 1743) (Dictum that policy void if insurers could prove that insured knew that another vessel, which sailed from Carolina ten days after the insured vessel, arrived in England seven days before the underwriting); Green v. Bowden (unreported, K.B. 1759) (Policy void where insured had informed insurers that his ship, which was lost on 25 Aug. between Naples and Leghorn, had been safe in Naples on 8 Aug., when in fact she had been safe there on the 3d).
4. That is, 79 days from 4 Sept., the date on which the master, Nicholas Gordon, sailed from Marblehead, until 22 Nov., the date of the underwriting.
5. The deposition of Joseph Pedrick, owner of the other half of the enterprise; the protest of the master, Nicholas Gordon, on the loss of the Merrill; and the deposition of Jabez Harlow, master of the vessel which finally brought Gordon and his crew home, may be found in SF 132239. This evidence supports the allegation that the master's orders were to proceed to Martinique. For relevant portions of the protest and other evidence on this question, see No. 11.
6. Captain Howard's deposition, “Sworn in Court, June 19, 1771,” states in part that
“About 14 days before I left Martineco one Monsr. Misinaire arrived there from Guadeloupe of whom I inquired if any vessels was there belonging to Marblehead or Salem. ... As to vessels he told me there was none belonging to Ither of those places. ... When I arrived at Marblehead I was inquired News of by Sundry persons and at Salem when I Entered but can't Remember any persons Particularly. I heard no news of Capt. Nichols Gordon belonging to Marblehead from the time I left it to my return [3 Nov. 1762].” SF 132239.
7. William Shillaber, the underwriter whose successful defense to Lee's action started the litigation. See note 2 above. Shillaber's deposition of 3 Nov. 1770, with some further details of the underwriting and of the conversation with Hooper, is in SF 132239.
8. Robert “King” Hooper, Marblehead's wealthiest merchant, and Lee's brother-in-law, Roads, History of Marblehead 350, 354; Stark, Loyalists of Mass. 222–223.
9. That is, a chance to have heard news of the vessel's safe arrival. Here the “Chance” was 34 days, the interval between the departure of the Merrill from Marblehead on 4 Sept. and Howard's departure from Martinique.
10. Presumably John Hodges (the “C” standing for “Captain”), whose deposition in the file of Goodhue v. Lee indicates that he was present in the insurance office at the time of the underwriting. SF 131923. Lee insured two other vessels with the Merrill. See Shillaber's testimony, text at note 247 above.
11. Josiah Cabot, one of the underwriters.
12. Joseph Hodges, one of the underwriters.
13. Another Marblehead captain who departed in one of Robert Hooper's vessels at about the same time that the Merrill sailed. See Shillaber's deposition, cited in No. 11, note 73.
14. One of the underwriters.
15. Gordon's orders are in SF 132239. In his deposition, sworn in court in Nov. 1770, also in SF 132239, he contradicted their impact. See the relevant parts of each as set out in JA's minutes in No. 11.

Docno: ADMS-05-01-02-0005-0003-0004

Author: Adams, John
Date: 1771-11

Adams' Minutes of the Argument1

Essex Superior Court, Salem, November 1771
Salem. Novr. 1771. Lee vs. Bancroft.
Lowell. 24 or 25 days a Chance. Passages from 17 to 25.
Vessell in Time. A fair Chance. Did not mention how long she had been out, nor Howards arrival.
C[ol.] Lees Character so respectable, and Knowledge so perfect, that “a fair Chance” &c. from him would preclude all Enquiry.
1764 Jany. 28. Receipt for Money.2
Judge Hutch[inson] mentiond a Case in Wilson3 that the Court { 195 } will not sustain an Action when the Policy is or has been under Refference. But the Clause in the Policy, that it shall be left to Arbitration, shall not preclude an Action.
Moses vs. Macfarlan. Burrows. Vol. 2d. 1009.4 Money paid upon a Risque deemed to be fair.
1. In JA's hand. Adams Papers, Microfilms, Reel No. 185.
2. That is, Lee's receipt to Bancroft for £20 paid out on the loss of the Merrill, in SF 132239.
3. Kill v. Hollister, 1 Wils. K.B. 129, 95 Eng. Rep. 532 (1746). The case held that an action lay on the policy since there had been no reference and none was pending.
4. Moses v. Macferlan, 2 Burr. 1005, 97 Eng. Rep. 676 (K.B. 1760). In this famous case the defendant had recovered against the plaintiff in the Court of Conscience upon notes indorsed by the plaintiff under an agreement that the defendant would not hold him liable on them. The latter court refused to hear evidence of the agreement, and the plaintiff brought an action at law in assumpsit for money had and received to recover the sums thereby awarded. While Lord Mansfield's decision that the action lies on the implied promise is the point for which the case is best known, the defendant had also argued that there could be no recovery of money awarded by the judgment of a court of competent jurisdiction. Mansfield held that the action was not inconsistent with the prior judgment because the Court of Conscience had properly concluded that the agreement was not before it. In the process he enlarged upon the theme that a new action could always be brought to attack a judgment on a ground that was not available as a defense against that judgment. The phrase noted by JA, which is from that portion of the opinion, appears in the following passage: “Suppose a Man recovers upon a Policy for a Ship presumed to be lost, which afterwards comes Home;—Or upon the Life of a Man presumed to be dead, who afterwards appears;—Or upon a Representation of a Risque deemed to be fair, which comes out afterwards to be grossly fraudulent.” 2 Burr. 1009–1010. As to the case, see C. H. S. Fifoot, Lord Mansfield 141–157 (Oxford, 1936).

Docno: ADMS-05-01-02-0005-0003-0005

Author: Adams, John
Date: 1772-11

Adams' Minutes of the Argument1

Essex Superior Court, Salem, November 1772
Lee. vs. Bancroft.
Lowell. 25 days a Chance.
Judge Hutchinson. The Underwriters charged Lee with concealing some Circumstances—the Arrival of a Vessell—but I cant recollect all the Particulars. The Arbitrators agreed. An Account of a Vessell and I think it was Howard, and Col. Lee told 'em it was possible she might be gone to some other Island. The main dispute whether she was gone to Martinico or some other Island. Heard something about Pedrick but cant say whether his Deposition was before us.
Mr. Rowe.2 Cabot and Crowningshield.3 No Evidence from Pedrick. They thought L[ee] had not said what was necessary, that he had concealed something which he should have communicated. The { 196 } Underwriter[s] thought she was bound first to Martinico, and they complaind that she went to some other Island.
Mr. Bourn. The Objection was that Lee had concealed Howards Arrival. Howard I know very well. The other Matter was spoke off, his being bound to one Island and going to another. I am not positive it was considerd.
1. In JA's hand. Adams Papers, Microfilms, Reel No. 185.
2. John Rowe notes in his diary under date of 2 Nov. 1772, that “I attended Mr. John Adams this morning about Colo. Lee's affair.” Rowe, Letters and Diary 235.
3. John Crowningshield, one of the underwriters. See No. 11.

Docno: ADMS-05-01-02-0005-0003-0006

Author: Wetmore, William
Date: 1772-11

Wetmore's Minutes of the Argument1

Essex Superior Court, Salem, November 1772
Lee—Bancroft. Review. Some Terms agon the parties agreed (Nov. 1771) to make 2 questions—1. Whether the reference to Rowe &ca. can be given in Evidence, and if not2
Objected to Judge Hutchinson that he had sat in the Cause as referee. Answerd that the same will lie in reviews and new hearings but J[udge] Hut[chinson] then utterly refused to Judge in the Cause. Then Two of the other 3 Judges (there being but 4. in Court) determined the award to be no barr.
The Court determind that the Plaintiff B[ancroft] shoud not be admitted to offer evidence of any fraud not mentioned in the declaration and therefore the former referees must be the proper persons to settle the facts of fraud laid before them and any previous to their award. Quin[cy] alledges that3[] was not laid before referees.
2. That the affair of the joint Orders being altered was not laid before them.
Low[el]l: 1. Query is this award a barr to the action and it must appear that the party must be heard in Person or by attorney and Ban[croft] was not there either way. Answered that plaintiff consented becaus he paid the Money in consequence of the award.
{ 197 }
As to the new evidence. I think this supposed that it's not sufficient to set aside the award.
Ropes. As to the intelligence of arrival its not clear to me that it was laid before the ref[eree]s. I think the Matters submitted I think 'em the same as now complained of.
And as to Plaintiffs Consent to the award I agree with Bro[ther] Cushing.
J[ustice] Oliver. It appears that there was sufficient time to have produced all the Evidence needful before the referees and for this and other Reasons mentioned the action is not maint[aina]ble and according to Parties agreement made before the [review] Ban must be defaulted.
2. As to the second question, see note 11 above.
3. Thus in MS. Quincy (who had replaced Sewall as Bancroft's counsel) may have referred to Pedrick's deposition mentioned by the referees in Doc. IV. The Minute Book does not specify whether this is Samuel or Josiah Quincy. Min. Bk. 93, SCJ Salem, Nov. 1772, C–4.
4. A blank space of several lines follows in the MS. It is therefore difficult to tell whether the opinion that follows is Justice Cushing's, but presumably it is.

Docno: ADMS-05-01-02-0005-0004-0001

Editorial Note

This is a companion case to Bancroft v. Lee, No. 10. John Crowningshield was one of the underwriters on the marine insurance policy taken out by Lee in 1762 upon one half the cargo of the schooner Merrill. He had submitted to the arbitration of Lee's claim, and in 1765 he finally paid his share of the Merrill's loss after Lee had recovered judgment against him upon the arbitration award in the Inferior Court. Crowningshield thereafter died, but in March 1769 his widow, perhaps inspired by the success of other underwriters in reopening the matter, brought an action against Lee in the Salem Inferior Court, alleging a false affirmation and the concealment of material circumstances in language virtually identical with that used in Bancroft's declaration. At the July term 1769 she obtained judgment after a jury trial,1 and Lee appealed to the Superior Court, where Adams and James Putnam served as his counsel.
Adams' short minutes of the trial in November 1769, printed below, deal almost entirely with the evidence presented on the question whether Lee's failure to reveal his orders to the master, Nicholas Gordon, amounted to concealment of a material circumstance. Lee's written application sought insurance for a voyage “from Marblehead to any and all the West India Islands to Windward of St. Croix, St. Thomas, the Havana, and Jamaica till said Cargo is sold and delivered.” Although this description is not without ambiguity, read literally it would seem to include both Guadeloupe, to which the master testified that Lee had directed him orally, and Martinique, the destination in Lee's written orders. Both islands lie { 198 } generally in the direction of the prevailing easterly trade winds from the named points. The plaintiff presumably accepted this reading, since she did not plead and does not seem to have argued either that this language, which was substantially repeated in the policy, was a warranty breached by a voyage to Martinique, or that a voyage to Martinique was outside the policy's coverage. Her point may have been that failure to disclose orders to Martinique was a concealment despite the literal meaning of the description of the risk, because the island had just been captured from the French and was still in a dangerous zone.
Lee apparently relied on the master's testimony that the final orders were to Guadeloupe. His position may have been that such orders were not a material circumstance, since the latter island had been in English hands since 1759.2 More simply, Lee may have urged that Mrs. Crowningshield's action failed because her declaration alleged concealment of orders to Martinique and the proof was that the orders had been to Guadeloupe. Whatever the argument, Lee prevailed. The judgment of the Inferior Court was reversed with costs.3
Mrs. Crowningshield entered an action of review at the November 1770 Salem Superior Court, with Adams now alone as Lee's counsel. At this term three of the other underwriters joined Mrs. Crowningshield in a rule to refer their claims. The referees brought in a unanimous report in Lee's favor, awarding him costs both of the action and the reference.4
1. See writ and judgment in both Inferior Court actions in SF 131857. Bancroft's declaration is quoted in No. 10.
2. On the war in the West Indies, see sources cited in Knollenberg, Origin of the American Revolution 24 note. As to trade with the French islands, see Goebel, “The 'New England Trade' and the French West Indies, 1763–1774,” 20 WMQ (3d ser.) 331–335 (1963). As to the trade winds, see William Falconer, An Universal Dictionary of the Marine, tit. Wind, 6th–7th (London, 1769). Guadeloupe, Martinique, and the chain of islands south and west of them, were known as the Windward Islands.
3. Sub nom. Lee v. Crowningshield, Min. Bk. 85, SCJ Salem, Nov. 1769, N–1; SF 131857.
4. Min. Bk. 93, SCJ Salem, Nov. 1770, N–4; SCJ Rec. 1770, fol. 226; SF 131988. The parties entering the reference were Joseph Hodges, George Dodge, and Elizabeth Cabot, widow of Josiah. Joseph Ward, the only underwriter who does not appear in litigation, may have settled his claim. See his receipt on the policy. SF 132239. Compare No. 10, notes 2, 3.

Docno: ADMS-05-01-02-0005-0004-0002

Author: Adams, John
Date: 1769-11

Adams' Minutes of the Trial1

Essex Superior Court, Salem, November 1769
Crowningshield vs. Lee. Salem S. Ct. Novr. Term.
Receipt for the Money, “and Costs of C[our]t.”2
1762. Aug. 9. Sailing orders. To proceed to Martineco or any other { 199 } Island—“and sell, at said Island, or any other Island in the West Indies.”
1762. Novr. 4. Grand terre. Nick Gordon, the Masters Protest, that they saild 4. Septr. from Marblehead bound to Martineco. 17th. Octr. taken.
1769. July 10. Gordons Testimony. “By particular verbal Directions, from Lee, a few Hours before sailing, I proceeded for Guadaloupe, and because Lee told me, that R. Hooper had orderd Captn. Power to Martineco, &c. After trying to get to Guadaloupe and could not, I thought it best to try for Martineco. My Written orders to proceed to Martineco or any other Island.”3
Rob. Hooper Esqrs. Test[imony].
The Mate's.4
1. In JA's hand on verso of his notes for No. 10, Doc. I. Adams Papers, Microfilms, Reel No. 185.
2. That is, Lee's receipt to Crowningshield for “fifty pounds he underwrote ... and costs of court.” This document, as well as the sailing orders and protest, extracts of which follow, are in SF 131988.
3. This is a substantially accurate extract of Gordon's deposition in Bancroft v. Lee. See No. 10, note 3215. Closing quotation marks have been supplied. As to Hooper, see No. 10, note 258. The files of the Crowningshield case contain his voucher for his expenses as a witness, as well as his order for insurance upon the schooner Dove, Thomas Power master, “to Martineco and from thence to any and all the Leeward Islands to Windward of Sambreo.” SF 131857.
4. See the deposition of the mate, George Gordon, sworn in court, Nov. 1769, substantially concurring with the master's testimony. SF 131988.

Docno: ADMS-05-01-02-0005-0005-0001

Editorial Note

John Mein's stormy career was cut short by two actions brought against him by John Hancock under a power of attorney from Mein's London creditors. That Mein infuriated the “well-disposed” and the Sons of Liberty is certain; that they rejoiced in his difficulties, including these protracted lawsuits, is equally clear.1 It is more doubtful whether Mein was correct in attributing to Hancock the responsibility for initiating the litigation. The evidence tends somewhat the other way.
To begin with, there is no question that by late 1768, Mein had run up sizable debts to two major London suppliers, Thomas Longman, the { 200 } bookseller of Paternoster Row, and a firm of stationers, Thomas Wright & William Gill.2 Mein did swear that his credit would have remained good had not Hancock “with an intent as this deponent believes to distress him the more wrote home letters to ... Longman ... importing that the aforesaid Hancock would willingly accept of a power of Attorney from ... Longman to whom this deponent was indebted as ... Longman alledges in the sum of one thousand six hundred pounds or thereabouts in order to seize or attach the effects of this deponent in Boston.”3
But the other sources suggest that whatever zeal Hancock may ultimately have thrown into the prosecution of the case, the initial impulse came from Longman, who in a letter of 22 July 1769 invited Hancock's assistance in recovering the debt.4 It is not certain just when this letter reached Hancock, nor has his reply survived. Apparently he responded affirmatively on 24 October 1769, requesting a formal power of attorney as well as Mein's account with Longman.5
Between 22 July and 24 October, Mein's standing with the patriot { 201 } party had deteriorated even more sharply. On 21 August he had begun publishing the manifests which incriminated many of the ostensible nonimporters.6 On 5 September, John Robinson had caned James Otis in the British Coffee House, and Mein had defied a mob to stand surety for W. S. Brown, accused of aiding Robinson.7 Enraged, the patriots had on 10 September censured Mein for treating “the whole body of merchants and traders in the most haughty, imperious, and insulting manner.”8 “Mr. Mein at present is so obnoxious to the People on account of his publishing the Manifests that he's obliged to go Arm'd” a contemporary wrote, “and tis but a few Nights since that two Persons who resembled him pretty much were attack'd in a narrow Alley with Clubs, and would in all probability have lost their lives if the Mistakes had not been timely discover'd.”9
Shortly after Hancock accepted Longman's commission, the final storm broke around Mein. On 28 October, as he was walking up King Street, a threatening crowd began to surround him. Pulling out his pistol, he faced down his assailants and slowly backed his way toward the guardhouse at the head of King Street. There he gained safety, but not before Thomas Marshall had laid the sharp edge of a shovel to Mein's back, and Mein's pistol had somehow gone off. Hidden in the guardhouse, Mein managed to elude the mob, even though Samuel Adams and William Molineux obtained a warrant and personally searched the premises for him. Finally, he escaped to a ship in the harbor,10 while ashore his effigy became the hate figure of the annual Pope's Day festivities.11
It was impossible for Mein to return to Boston. When he asked Governor Hutchinson for military protection to enable him to press his civil remedies against those who had mobbed him, Hutchinson refused. “In Ireland perhaps where the people have been long used to the military upon an apprehension only of violence from the populace such a measure might have { 202 } been advisable. In the present state of the colonies I could not think so; and rather thought it advisable for him to forebear prosecuting his complaint for some time.”12 Only one thing remained for Mein to do, and he did it: return to Britain.13
Longman meanwhile, having received Hancock's undertaking to act as attorney, immediately himself executed and caused Wright & Gill to execute certified powers of attorney which, together with bookkeepers' affidavits, were promptly sent to Boston. These arrived on 1 March 1770; that very day, John Adams filled out the writs and had the deputy sheriff seize Mein's property, which included his stock of books and, most important, “Seven frames on which are sixty-five Cases with the Types &c. Two Printing Presses with all the Materials thereto,” and “One composing Stone.”14
As Mein later swore, “On the afternoon of said day it was propos'd to Mr. Hancock's Lawyer (Mr. Adams) to give undoubted security to stand the issue of the suit, he discharging the attachments. This proposal was refused and Mr. Murray (Mr. Mein's friend who made the proposal) given to understand that nothing would be satisfactory but an absolute security for the debt independent of any suit. The day following, Mr. Murray sent proposals of accomodation in writing to Mr. Hancock to which he receiv'd Mr. Hancock's answer on the 3d of March. On the 7 of March Mr. Murray sent other proposals of accomodation to Mr. Greenleaf the Sheriff which Mr. Greenleaf answer'd in a letter to Mr. Fleeming the Friday following [9 March]. On the 25th Mr. Murray again wrote to the Sheriff and receiv'd an Answer the 4th of May.”15
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The texts of Murray's original proposals to Hancock have not been found. Charles Bolton, who appears to have examined them in the early 1900's, when what are now the Hancock Papers at the Massachusetts Historical Society were still in the possession of Charles Pelham Greenough, reported that Murray wanted “to have the attachment withdrawn, allow the suit for £1600 to go on in the King's Bench and abide by the judgment of the Court, the property meanwhile to be appraised upon oath and to be delivered up to Hancock as attorney when executions came to be issued.”16 The reference to the Court of King's Bench may be inadvertent; on the other hand, perhaps Murray contemplated a discontinuance of the Massachusetts action in favor of proceedings in London, before an English jury instead of an American one. If it was the local jury which Murray feared, later events proved his doubts well-founded. And, as it turned out, Longman started a suit in the King's Bench anyway.
Despite the failure of the preliminary settlement negotiations, Murray was able, by a means still unexplained, so to manage matters “with the Sheriff as to get him to accept of a pledge for the value of Mr. Mein's Interest attached at the printing office. This set the press a going again, much to the Surprize and Disappointment of Mr. H—— and his party, with whom this was the Capital Object in this Stroke of his. A method has been since hit on to relieve the books also by a tender of other Goods.”17
It is not clear whether the method of relieving the books ever went into operation. On 18 May 1770, Hancock reported to Longman that Mein's “Effects are in the hands of the Sheriff, and as soon as it has gone thro' the Law, and the Effects turn'd into money, the neat proceeds shall be remitted you, and you will determine the settlement between you and Messrs. Wright & Gill. Tho' I fear even the Whole of his Effects will fall vastly short of the Debts, but I have got all and could get no more.” And Hancock urged Longman to “get further Security of Mr. Mein in London.”18 This Longman had already done, commencing an action in the King's Bench against Mein for the amount of the debt and having him arrested and committed to prison “in hopes of His having some Friends that would appear in His behalf.” Friends did appear, but none apparently with funds sufficient to release the attachment and free Mein.19
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Meanwhile, back in Boston, Fleeming, who had been keeping the Chronicle going, at last gave up. On 25 June 1770, he put out his final number, “shut up his printing office and fled to the castle for protection.”20 And the lawsuits droned on, having been entered at the April 1770 Suffolk Inferior Court, but continued from term to term. As Hancock explained to Longman, “by a law of the Province, when an Action is brought against a man who is out of the Province, the action must be continued in the Inferior court six months. This was the reason why the action against Mr. Mein was continued at first and when the six months were expired, Mr. Kent, the lawyer, appeared for Mr. Mein at the request of Mr. Fleeming who had a power of attorney from Mein, and moved in Court that these actions might be continued three months longer, because he said Mr. Mein had since been arrested in London for the same debt and was a prisoner in the King's Bench for them and therefore desir'd time that they might get evidence of it, in order that the suits here might be discharged. The Court granted the motion.”21
Finally, on 15 January 1771, the actions came on for trial in the Suffolk Inferior Court, with Adams representing the creditors, and Benjamin Kent defending Mein. Our account of what took place is conjectural, for Adams' trial notes have not survived; we have only a list of authorities which he used in argument. The reconstruction which follows has been based on the Hancock correspondence and the court files.
In both actions, the writ had originally sounded in ordinary indebitatus assumpsit, based on an account annexed to the writ, which set out in rudimentary double entry form the amount of Mein's purchases over the years, the sums he had paid on account, the balance due, and (in Wright & Gill's case) the interest.22 When the cases came on, according to Hancock, “an objection was made by Mr. Mein's Council to the Generality of [Longman's, and, presumably, Wright & Gill's] account, that it was not sufficiently explicit, and that the particulars should be Exhibited.” This was, Hancock assured his London correspondents, a mere delaying ruse. None• { 205 } theless, “it is best at the next Trial to be ready to answer and remove their objections.” So he forwarded “Mr. Adams's (my attorney) minutes to me in order to Transmit you, by which you will see what is necessary for you to do, and I pray you will so soon as possible after the receipt of this prepare the necessary papers and accounts and be as explicit as possible. ... You will Communicate this to Messers. Wright & Gill.” That Adams considered the accounts essential to the case may be deduced from the fact that Hancock sent his letter in duplicate by two separate vessels.23
It is not certain whether by 16 January 1771, the date of Hancock's letter, the trials had been held; the court files contain a summons in Adams' hand to “Alexander Reid Stationer, and William Miller both of Boston,” dated 17 January 1771; the return indicates that these witnesses were actually subpoenaed on 19 January.24 Possibly the court heard the preliminary objections and then continued the matters for trial later on in the term; the cases were certainly tried at this term.25 At the trial Adams apparently put into evidence the depositions of the respective bookkeepers which established the facts of the debts; he may also have called Reid and Miller for evidence on the reasonableness of the Wright & Gill prices or even to prove that Mein had actually received the goods in question.26 Whether the defense adduced any evidence is an open question.
From Adams' authorities (Document II) and Hancock's letter of 16 January, referred to above, it appears that the court, on whatever evidence the plaintiffs had brought forward, or perhaps on the basis of defendant's objections to the legal sufficiency of the accounts, had directed a finding for the defendant in one or perhaps both of the actions, and that the { 206 } respective juries had notwithstanding brought in plaintiff's verdicts. The material at the end of the Adams notes suggests that the objection reported by Hancock had been the basis for the court's charge that the accounts lacked particularity.
At any rate, the juries seem to have treated the cases individually. In the Wright & Gill action, the account annexed had listed every single shipment which made up the debt; the verdict was for the net balance, plus the claimed interest. Longman, on the other hand, had sued on an account whose first item was simply “To a Ballance due as per Account then sent ... £1453:10:0,” the other items being individual shipments.27 In reaching its verdict for Longman, the jury deducted the preexisting balance from the balance on the account, thus in a sense giving some effect to defendant's objection and the court's direction. As Adams noted: “Verdict for Longman for about £200, far short of the whole. Apld. both sides.”28
It is clear that the defendant moved for a new trial in the Inferior Court, possibly in both actions, although Adams' collection of authorities on this point bears only the title “Wright and Gill vs. Mein—The Jury.” In his quasi-brief (Document II), the simple point of commercial evidence on which the cases really turned quickly became obscured in the constitutional argument over the sacred right of jury trial, an argument which Adams expounded even more vigorously in the apparently contemporaneous fragment reprinted here from his diary as Document III.
Whether the “free speech” theme which underlay Adams' references to current English political turmoil echoed some of the bitterness of the Boston journalistic controversy, and whether Adams was attempting to inject contemporary local partisanship into an otherwise quiet legal dispute are matters well beyond the scope of the present note. Certainly in Boston, free speech and the power of the jury were related subjects. Three years before, after a series of vicious attacks on then-Governor Bernard had stimulated Chief Justice Hutchinson to a detailed charge upon the subject of criminal libels to the Grand Jury,29 the jurors refused to indict—because they were tampered with, Bernard claimed; because they were “worthy and independent,” the Sons of Liberty boasted.30 And the inter• { 207 } weaving of press and jury, as the issues had arisen in England, was brought vividly to Boston's attention at the very time of the Mein cases, for the Boston Gazette of 28 January 1771 had reprinted the “Junius” letter to Lord Mansfield which Adams quoted in his brief; and the battle between Lord Camden and Lord Mansfield was reported in the Boston Gazette of 4 February 1771.31
Of course, the Bernard libels and the Junius-Mansfield-Camden imbroglio all dealt with the power of a criminal jury to decide law as well as fact. The interesting features of the Mein litigation are that it was an ordinary civil action, and that the court agreed with Adams and allowed the verdict to stand, a point to be considered more fully later in this note.
In view of the right of appeal, why did Mein's attorneys bother to resist the outcome at the Inferior Court stage? Perhaps they felt that some tactical gain would result from a delay. It is noteworthy that Adams did not seek a new trial in the Longman case, where the jury had returned a verdict so much less than the amount sued for. The explanation for that seems to lie in the court's not having directed a larger verdict; thus the smaller verdict did not (so far as plaintiff was concerned) contravene a favorable direction.
The double appeals in the Longman case and Mein's appeal in the Wright & Gill case were entered at the February 1771 Suffolk Superior Court, whence they were continued, possibly because the additional accounts were still in London.32 By August they had arrived, full of enough bibliographical detail to support a doctoral dissertation. Hancock “immediately” delivered them to his “Attornies ... in full Expectation of the { 208 } matter being Determined at our August Term, but the Judges saw fit to Refer it to November.”33
At the November adjournment, Adams chose not to rely solely on the fortified evidence. On 26 November 1771, he filed new declarations, alleging, in addition to the promise to pay, language comprising what Massachusetts lawyers then and now would call “the common counts,” a phrase which is shorthand for stereotyped language stating the debtor creditor relationship in every conceivable way. Moreover, Adams increased the amount of the alleged debt; instead of suing merely for the net amount due, he stated as damages the total of Mein's purchases.34
It is impossible accurately to calculate the date of trial from the minute books. Hancock's letter to Wright & Gill of 30 November says: “The Jury yesterday at Superior Court gave in their Verdict in our favor in Mein's Affairs, but Mr. Mein's Council mov'd for a New Trial. How that will be Determined, I know not, but will inform you and as soon as I obtain Execution will turn the Effects into money as soon as possible. Please to inform Mr. Longman of this as I have not time now to write him.”35
The jury, which had been the same in both cases, although they had been tried separately, brought in verdicts in the amount of the outstanding balances. It is worth noting, in view of the earlier arguments concerning the right of the jury to bring in a general verdict, that the verdicts as the jury originally returned them read, in each instance, “the jury find for the appellant [in Longman —”for the appellees” in the other action] the net amount sued for.” Each verdict was then amended to conform with the pleading in assumpsit to read: “the jury find that the [original defendant] made the promise alledged in the Declaration & assess damages.”36
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There is no indication when, if ever, motions for new trials were heard. If they did come on for hearing, they were apparently denied because, on 23 December 1771, executions were issued.37 Then began the problem of trying to realize on the security. As far back as 24 April 1771, Hancock had warned Longman that despite the assurances of Mein's friends about the adequacy of Mein's effects to cover the claim, “you will find on the settlement of the matter here, it will fall vastly short of their Expectation and manifest their suggestion to be utterly groundless.”38 Now the event proved his prophecy. Longman's original attachment had covered “a large number of books, a parcell of Stationery Ware, an Iron Stove, a Wooden press, some Patent medicines, magazines, Reviews and other pamphlets, pewter plates for Engraving, forty five trunks with a variety of other articles,” which had been stored during the litigation in a house owned by Samuel Fitch, and upon which the Sheriff levied on 27 December 1771. The appraisers were three Boston bookseller-stationers, Henry Knox, the future Secretary of War (appointed by the Sheriff), Joseph Edwards (appointed by Hancock), and John Langdon (appointed by Fleeming). After ten days' contemplation, the appraisers valued the assortment at £1,038 8s. 10d. Massachusetts money. Deduction of various costs (including an appraisement fee of £32 15s. 5d.) brought the figure even lower: on 18 February 1772, all outstanding fees having been deducted, Hancock signed a receipt for “books, other goods and Effects” valued at £956 4s. 6d.39
The dividend on Wright & Gill's claim was similarly slight. On 10 November 1770, three printers—Richard Draper, John Green, and Thomas Fleet—had appraised the printing plant at £185 17s. 4d., of which half belonged to Fleeming. After Sheriff Greenleaf levied execution upon this equipment on 26 December 1771, they again appraised it at the same figure. Some bookbinding equipment being caught within the execution, Langdon and Edwards returned to appraise it, too. Once again, costs were deducted, and Hancock receipted for £94 11s. 6d. worth of bookbinder's tools and printing gear.40
Liquidating the collection was difficult. Not until the fall of 1772 was Hancock able to remit anything to England and even then he had to confess that “to this Day have not Received the Whole Money. There is now outstanding about £100 Lawful Money. However, rather than keep them any longer, I have taken it upon myself and now close the whole.”41
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Whether the underlying motive in these suits was financial or political, they did raise questions of broader significance than Mein's inability to pay his debts or even the patriots' desire to close his newspaper. The issue of a jury's right to decide the law independent of the court's direction or in violation of it (and the closely related question, whether or not counsel could argue law to the jury) claimed much attention in 18th century England and America. It was present not only in this case, but also in Cotton v. Nye, No. 3, and in Rex v. Richardson, No. 59. The problem arose also in the Massacre Trials (Nos. 63, 64) where Adams very carefully urged the jury to rely on the authorities which he was citing (and which the prosecution did not dispute), in order to enable the jury correctly to determine the law itself.42 Josiah Quincy, on the other hand, more “carried away by zeal for his client,”43 argued that the law was the court's concern, and that on the facts, the accused must be acquitted.
The extent of the jury's power and the means by which the judges may impose and maintain bounds on that power agitate the profession even today.44 At early common law, a court at Westminster, when considering the result of proceedings at nisi prius, could, if it “thought that there had been irregularity in the proceedings ... decline to proceed and leave the parties to start proceedings afresh. In other words, there was a new trial.”45 In the 17th century, “it became the practice for the judge, with the consent of the parties, to give leave to move the court to enter a verdict for the other side, if they considered that his direction to the jury had been erroneous.”46
By the beginning of the 18th century, the idea of granting a new trial for misdirection had become rooted in the supervisory functions of the Westminster courts.47 Other grounds for the granting of new trials included the judge's error in admitting evidence or excluding it,48 and a “wrong” finding by the jury. This latter phenomenon divided itself into { 211 } two classes, verdicts “contrary to the evidence” or “against the evidence” and verdicts “against the weight of the evidence.” The distinction does not always emerge clearly from the reports and the abridgments, but the difference seems certain. A verdict contrary to evidence was one in which all the evidence adduced, no matter by whom, tended toward one party and none toward the other. A verdict against the weight of the evidence was one in which, although favorable evidence had been produced for both parties, the evidence, taken as a whole, preponderated for one side or the other. The difference may be illustrated by an anonymous case of 1743. At the trial there had been six witnesses for each side, and the judge certified “that the jury found for the defendant, which was against his opinion, but that he could not take upon himself to say that this was a verdict against evidence, because there was evidence on both sides.”49
Generally, “if the Jury have found a Verdict contrary to the Evidence, the Court will grant a new Trial,”50 the theory being “that the Jury ought to ground the Verdict intirely upon the Evidence given in Court.”51 But, where the trial had seen evidence for both sides, the problem was more difficult. After all, a certification by the trial judge that the verdict was against the weight of the evidence was (and is today) nothing more than a judicial evaluation of the testimony, a difference of opinion between one man and twelve. Which estimate, or rather whose estimate, should prevail, seriously troubled the English judges: “It has been held in some Cases, that if the Jury have found a Verdict which is in the Opinion of the Judge before whom the Cause was tried contrary to the Weight of the Evidence this is a good Reason for the granting of a new Trial.... But it has been held in other Cases that the Court ought not to grant a new Trial; because the Jury have in the Opinion of the Judge before whom the Cause was tried found a Verdict contrary to the Weight of the Evidence.”52
An unreported case set out in Bacon's Abridgment sums up the state of the law on this point. On the motion in the Common Pleas for a new trial, Chief Justice Pratt, before whom the trial had been held at nisi prius, said: “If I had been upon the Jury, and had known no more of the Witnesses than I did when this Cause was tried, I should have thought that the Verdict which is for the Plaintiff ought to have been for the Defendant; but I do not chuse to declare myself dissatisfied therewith: Because wherever there is a flat Contrariety of Evidence as to the principal Matter in Issue, and the Characters of the Witnesses on both Sides stand unimpeached, the Weight of Evidence does not altogether depend upon the Number of Witnesses: for it is the Province of the Jury who may know them all to determine which Witnesses they will give Credence to; and in my Opinion no Judge has a Right to blame a Jury for exercising their Power of determining in such a Case.”
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Clive, J., said: “The granting of a new Trial in this Case would be taking away that Power which is by the Constitution vested in the Jury. It has been said that it is the Duty of the Judge to enlighten the Understanding of the Jury, but that he ought not to lead the Jury by the Nose.”
Bathurst, J.: “As there was in this Case strong Evidence for the Plaintiff a new Trial ought not to be granted, although the Weight of the Evidence was in [the trial judge's] Opinion with the Defendant.”
Gould, J.: “It is very difficult to draw a Line between the Cases in which there ought or ought not to be a new Trial; and perhaps the granting of a new Trial must in every Case depend upon the particular Circumstances of the Case. In the present Case there is no Reason to grant one.”53
And in so-called “hard” cases, that is, actions which the court felt should not in conscience have been prosecuted, new trials were denied after verdicts for the defendant, even though against evidence.54 As Bacon put it: “It has been held in divers Cases that the Court will not grant a new Trial unless the Justice of the Case requires it, although the Jury have found a Verdict contrary to the Evidence.”55
No consideration of the judge-jury problem in English law could properly omit some mention of Bushell's Case,56 which established the principle that a jury which refused to convict, in defiance of the judge's direction, could not be fined and imprisoned.
Shortly after it was decided, the case was cited in support of the argument that the jurors need not respect the court's direction in anything pertaining to their verdict. In a chapter entitled “That Juries are not Finable, or any way to be punish'd, under Pretence of going contrary to Evidence, or against the Judges Directions,” Henry E. Care, the author of English Liberties, set out large portions of the opinion “to satisfy you that a Jury is in no way punishable for going according to their Conscience, though against seeming Evidence.”57 A close reading of Chief Justice Vaughan's holding indicates, however, that it very narrowly restricts and qualifies the jury's role. Because of the significance of the case, and because Adams apparently cited it in his argument in the instant cases,58 a reappraisal of Bushell's Case is worthwhile here.
Bushell had been one of the jurors who had disregarded the court's instructions and had refused to convict the Quakers Penn and Mead at their { 213 } trial in the Old Bailey. As a result, the judges had imprisoned the jurors and literally starved them. Finally, Bushell's lawyers obtained a writ of habeas corpus from the Court of Common Pleas, and the Sheriffs of London, bringing Bushell with them, came into Court to justify the imprisonment. The main reason was “That the Jury acquitted those indicted against the direction of the Court in matter of Law, openly given and declared to them in Court.”59 Vaughan admitted that “no Issue can be joyn'd of matter in Law, no Jury can be charg'd with the tryal of matter in Law barely, no Evidence ever was, or can be given to a Jury of what is Law, or not; nor no such Oath can be given to, or taken by, a Jury to try matter in Law.” But he denied that the judge “having heard the Evidence given in Court (for he knows no other)” could tell the jury “upon this Evidence, the Law is for the Plaintiff, or for the Defendant, and you are under the pain of Fine and Imprisonment to find accordingly.”
However, he said plainly that the judge could before verdict ask the jury whether it had found a particular fact and, depending on the answer, could “declare 'The matter of Fact being by you so found to be, the Law is for the Plaintiff, and you are to find accordingly for him.'” And a finding for the defendant “may be thought a finding in matter of Law against the direction of the Court; for in that case the Jury first declare the Fact, as it is found by themselves, to which fact the Judge declares how the Law is consequent.”
And even after verdict, the judge may “ask, 'How do you find such a Fact in particular?' And upon their answer he will say, 'then it is for the Defendant,' though they found for the Plaintiff, or e contrario, and thereupon they rectifie their Verdict.”
It was also proper, Vaughan said, to put the matter to the jury hypothetically: “If you find the Fact thus (leaving it to them what to find) then you are to find for the Plaintiff; but if you find the Fact thus, then it is for the Defendant.”
But, because the law of the case depended on the facts, and because the jury alone could find the facts, it was impossible for any judge to direct the jury. “If the Jury were to have no other Evidence for the Fact, but what is depos'd in Court, the Judge might know their Evidence, and the Fact from it, as equally as they, and so direct what the Law were in the Case.” But the jurors, the neighbors of the parties, have knowledge of their own, going either to the issues or to the credibility of the witnesses. It is, therefore, “absurd a Jury should be fined by the Judge for going against their Evidence, when he who fineth knows not what it is. ... [F]or the better and greater part of the Evidence may be wholly unknown to him; and this may happen in most Cases, and often doth.” “[T]he evidence in Court is not binding evidence to a Jury.”
Finally, Vaughan noted, although in some situations, such as demurrers to the evidence, the decision goes “upon the Judge's Opinion of { 214 } the Evidence given in Court, [and] the Plaintiff becomes Nonsuit, when if the matter had been left to the Jury, they might well have found for the Plaintiff,” in all general issues, the jury merely “find for the Plaintiff or Defendant upon the Issue to be tryed, wherein they resolve both Law and Fact complicately, and not the Fact by itself.”
Bushell's Case thus rests principally on a concept of the jurors as quasiwitnesses, an idea which remained very much alive down to Adams' time, as the quotation from Chief Justice Pratt demonstrates. To the Vaughan Pratt view, which is unanswerable once its major premise be accepted, the Massachusetts lawyers added an interpretation of Bushell's Case which had come to them through Care's book, that the jury should always decide the law as well as the fact. On 13 March 1769, the Boston Gazette ran an unsigned letter setting out a long passage from English Liberties, including this sentence: “'Tis by applying Matter of Fact and Law together, and from their due Consideration of, and right Judgment upon both, that a Jury brings forth their Verdict.”60
The author of Appendix II to Quincy's Reports thought that, until the 1800's, Massachusetts civil juries had the right to decide both law and fact, in support of which position he cited Stickney v. Atwood.61 From Dane's digest of this unreported case, it appears that one of the purported grounds for a new trial was that the verdict was against the court's opinion. The court apparently overruled the motion, however, holding that the verdict was “not against the court's opinion, if the facts be true, of which the jury must judge.” Thus the case seems to stand only for the proposition that if court and jury disagree over the facts, the jury's mind will control.
The distinction between (1) the jury's disregarding the court's direction in a matter of law, and (2) the jury's disregarding the court's opinion of the facts was not entirely clear in 18th-century Massachusetts, although the English decisions, even the Junius cases, made the difference plain. In each of those criminal libel cases, the jury had been asked to find only the bare fact of publication, with the legal effect of publication—the guilt or innocence of the accused—to be decided then by the judge. That is, the court was asking the jury to respond to a kind of special interrogatory: “Did the defendant publish the statement in question?” Or, to put it another way, the courts were attempting to force the jury to return a special verdict (a verdict in which the jury found certain specific facts, leaving it to the court to determine which party should prevail). In a general verdict, on the other hand, the jury found “generally,” that is, for the plaintiff (with assessed damages), or for the defendant according to the plea. It was the juries' insistence on bringing in a general verdict (not guilty) which, combined with judicial attempts to regard these general verdicts as special ones, touched off the controversy. But not even Lord Mansfield himself ever directed a jury to find the simple fact of publication.
Inability to distinguish between the differences stemmed in part, as { 215 } Adams himself noted, from the practice of styling anything the court said a “direction.”62 Thus what today would be considered a judge's summing up, or perhaps his commentary on the evidence,63 might, in Adams' time, be regarded as an attempt to direct a jury's finding. Expressions like “contrary to the mind of the Court,”64 or “against the mind of three in four of us Judges,”65 could be interpreted either way.
Of course, no one took the position that all questions whatsoever were for the jury. Even Adams admitted that there were numerous classes of litigation whose intricacies “would confound a common Jury and a decision by them would be no better than a Decision by Lott.”66 But Adams' point was that the jury would recognize its own limitations and would voluntarily bring in a special verdict in such cases. He argued that it should be the jury's decision rather than the judges' whether or not a special verdict should be employed, and that the jury, if it liked, could decide to determine the law, no matter what the court thought. The opposing view found expression in a letter to The Censor, signed “A.Z.,” which insisted that the losing party receive a new trial “when a jury will pertinaciously determine matters of law directly against the opinion of the Court.”67 A middle view came from Robert Auchmuty and Chief Justice Hutchinson. Arguing against a new trial in a 1763 case, Auchmuty had said: “I confess I wish for a Power in the Court to set aside Verdicts, but not for an unlimited one. ... The Court is not to be Judge of the Law and Fact too absolutely; if it should be, it takes away all Verdicts but such as are agreeable to the Mind of the Court.” And Hutchinson asked: “Are you not agreed, that, were it evidently against Law and Evidence, there the Court may grant a new Trial, but not where there is Evidence on both sides?”68
Whatever the division of powers and function between court and jury, it is apparent that in Massachusetts anyhow, after a verdict the judges could not enter up judgment for the losing party, no matter how strong they thought his case to be. The most he could get was a new trial. Even { 216 } “A.Z.” asked for nothing more than that. It was not until the middle of the 19th century that the Massachusetts Court ruled that if a civil plaintiff's evidence was so weak that “the Court would set aside any number of verdicts rendered upon it, toties quoties, then the cause should be taken from the jury by instructing them to find a verdict for the defendant.”69
1. Note JA's view in 1775: “There never was before, in any part of the world, a whole town insulted to their faces, as Boston was by the Boston Chronicle. Yet the printer was not molested for printing. It was his mad attack upon other printers with his clubs, and upon other gentlemen with his pistols, that was the cause, or rather the pretence, of his flight. The truth was, he became too polite to attend to his business; his shop was neglected; procurations were coming for more than two thousand pounds sterling, which he had no inclination to pay.” “Novanglus,” No. iii, 4 JA, Works 29, 30. Yet JA apparently bought books of Mein. See 1 JA, Diary and Autobiography338. As to Mein, see also No. 5.
2. See the accounts in SF 101964. The debt to Longman was £1,643 19s. 3 1/2d.; that to Wright & Gill was £315 3s. 6d. Mein had written Longman on 28 Sept. 1768, forwarding a part payment and assuring prompt settlement of the outstanding accounts. MHi: Hancock Papers. Longman's firm was the direct ancestor of the present London publishing house of Longmans, Green & Co., Ltd. Unfortunately, a wartime bomb destroyed the firm's records for the period in question. Letter to the editors, 30 April 1963, V. L. Ripley (secretary to Mr. Longman).
3. Copy of Mein's affidavit, 22 Feb. 1770, MHi:Hancock Papers. See also Alden, “John Mein: Scourge of Patriots,” 34 Col. Soc. Mass., Pubns. 571, 590 (1942), which notes that the John Carter Brown Library copy of The Letters of Sagittarius (Boston, 1775), a book attributed to Mein, bears on its flyleaf an inscription accusing Hancock of buying up Mein's English debts and, by making “a sudden demand upon honest Mein,” bringing on his ruin.
4. Thomas Longman to John Hancock, 22 July 1769:
“Your haveing several times offered me your kind assistance induces me now earnestly to request it in the following affair.
“Mr. John Mein of Boston (Bookseller) is Indebted to me a very considerable sum of Money, the greatest part of which has been due near three Years, which upon my remonstrating to Him He has several times promised to make such Remittances as w'd be satisfactory, but this He has yet neglected to do, nor now even so much as writes to me by way of appology. I should therefore be greatly obliged to you if you could recommend a proper Person to me to whom it would be safe to send a power of Attorney and to Act for me in the most adviseable manner in this unfortunate affair. I know your time and attention is at present much taken up in Public Affairs, but as the recovery of this Debt is of great consequence to me, hope you will not deny my request but favour me with your answer by the first opportunity which will be ever gratefully acknowledged by Sr. Your much obliged Humble Servant, Thomas Longman.” MHi:Hancock Papers.
It was at Longman's instance that Wright & Gill, too, made Hancock their attorney over a year later. Longman to Hancock, 4 Dec. 1769, MHi:Hancock Papers.
5. “I received your favour of the 24th of October (per Capt. Bryant) on Wednesday last, and shall ever acknowledge my self under the greatest obligations for your readiness to undertake the settling of my Account with Mr. Mein, and for that purpose have inclosed a state of it properly Attested, with a Letter of Attorney impowering you to act for me in this unfortunate Affair.” Thomas Longman to John Hancock, London, 4 Dec. 1769, MHi:Hancock Papers.
6. Andrews, “The Boston Merchants and the Non-Importation Movement,” 19 Col. Soc. Mass., Pubns. 159, 228 note (1918). The publishing stopped temporarily on 19 Oct. 1769. Ibid.
7. Letter, Thomas Young to ——, Sept. 1769, reprinted in Edes, “A Memoir of Dr. Thomas Young,” 11 Col. Soc. Mass., Pubns. 2, 5–6 (1910); James Murray, however, indicates that Murray himself was the sole surety. N. M. Tiffany and S. I. Lesley, eds., Letters of James Murray 160 (Boston, 1901). Mein had apparently been present at the affair: the capias for Brown and Ralph Dundass lists Mein as among the witnesses. SF 89228.
8. Andrews, “Boston Merchants,” 19 Col. Soc. Mass., Pubns. 228 note.
9. George Mason to Joseph Harrison, 20 Oct. 1769, 3 Bernard Papers 53, MH.
10. Alden, “John Mein: Scourge of Patriots,” 34 Col. Soc. Mass., Pubns. 571, 587–589 (1942) vividly uses the sources to describe the near-lynching. See also Rowe, Letters and Diary 194; Tiffany and Lesley, Letters of James Murray 168; John Miller, Sam Adams, Pioneer in Propaganda 205 (Boston, 1936); George Mason to———, 28 Oct. 1769, 3 Bernard Papers 47, MH; Mein to Joseph Harrison, 5 Nov. 1769, id. at 51; Gailer v. Trevett, p. 41, note 3519, above.
11. Celebrated on 6 Nov., because 5 Nov. 1769 fell on a Sunday. The effigy carried an acrostic which included the homonymic line “Mean is the man; M—N is his name.” Bolton, “Circulating Libraries in Boston, 1765–1865,” 11 Col. Soc. Mass., Pubns. 196, 198 (1910).
12. Hutchinson to Hillsborough, 11 Nov. 1769, 3 Bernard Papers 53, MH.
13. See George Mason to Joseph Harrison, 11 Nov. 1769, which refers to Mein's taking “his passage home in one of His Majesty's Armed Schooners,” and is docketed “Per Mr. Mein. Reed Jany 3d.” 3 Bernard Papers 54, MH. Compare Arthur M. Schlesinger, The Colonial Merchants and the American Revolution 160 note (N.Y., 1918).
14. Longman to Hancock, 4 Dec. 1769 (docketed “Rec'd by [i.e., via] Paddock March 1st, 1770”): “By this Ship believe you will Receive Letters from Messers Wright & Gill requesting the same favour of you, and as it was by my persuasion they opened an account with Mr. Mein, I could not with Honour take any steps without acquainting them with it.” MHi:Hancock Papers. The writs and the deputy sheriff's return are in SF 89428 and 101964. The powers of attorney are also in SF 101964. Adams' Office Book for the April 1770 Suffolk Inferior Court lists both cases, and notes for each: “Copying acct, at J. Hancock Esq's. Instance,” and “7s posted to J. Hancock Esqr.” MQA.
15. Deposition of John Mein (copy), 22 Nov. 1770, MHi:Hancock Papers. The correspondence between Murray, Greenleaf, and Fleeming appears as Doc. I below. Murray, a Scot like Mein, attracted the ire of the Liberty Party as much for his ancestry as for his tory leanings. “It may not perhaps lessen your opinion of Mr. Murrays good Qualities to inform you that he is a Scotchman and has continually caball'd with his loyal Countreymen in this Town, and the other Governmental tools against the Charter and liberties of this Province.” William Palfrey to John Wilkes, ca. 23–30 Oct. 1770, in Elsey, “John Wilkes and William Palfrey,” 34 Col. Soc. Mass., Pubns. 411, 422 (1941). Anti-Jacobite feeling was apparently strong in Boston in the late 1760's and early 1770's. Adams' notes in No. 5 are headed “News Paper. Jacobite Party.” And the Boston Gazette of 5 Sept. 1768, p. 4, col. 1, ran a violent letter on the subject. It is difficult to estimate how this spirit affected the jury's attitude toward Mein's litigation, but the effect was probably not favorable.
16. Bolton, “Circulating Libraries in Boston, 1765–1865,” 11 Col. Soc. Mass., Pubns. 196, 199. Hancock denied that the proposal would have “fully secur'd” Longman; he insisted that he “waited for Security and finally could obtain none.” Hancock to Longman and Wright & Gill, 10 Jan. 1771, MHi:Hancock Papers.
17. James Murray to Elizabeth Smith, 12 Mar. 1770, in Tiffany and Lesley, Letters of James Murray 169–170. “Relieve the books” means to lift the attachment on them.
18. Hancock to Longman, 18 May 1770, MH-BA: Hancock Letter Book, in A. E. Brown, John Hancock, His Book 94 (Boston, 1898).
19. Longman to Hancock, undated. MHi:Hancock Papers.
20. Christian Barnes to Elizabeth Smith, 29 June 1770, in Tiffany and Lesley, Letters of James Murray 178. The “castle” was Castle Island in Boston Harbor where the troops were quartered.
21. Hancock to Longman, 19 Nov. 1770, MH-BA:Hancock Letter Book, in part in Brown, John Hancock, His Book 95–96. Hancock's report is confirmed by Min. Bk., Inf. Ct. Suffolk, April 1770, Nos. 178, 179; July 1770, Nos. 113, 114; Oct. 1770, Nos. 67, 68. The statute in question was “An Act to Enable Creditors to Receive Their Just Debts out of the Effects of Their Absent or Absconding Debtors.” 4 A&R 168, 169, Act of 13 Feb. 1759: “and such attorney, factor, agent or trustee, upon his desire, shall be admitted to defend the suit on behalf of his principal throughout the course of the law, and an imparlance shall be granted of course at two terms successively, that he may have an opportunity to notify his principal thereof, and at the third term, without special matter alledged and allowed in bar, abatement or further continuance, the cause shall peremptorily come to trial.” Originally, a prayer for leave to imparl meant that the defendant “wanted time to talk matters over with the plaintiff out of court. Later on all that it meant was that he wanted to have until the next term to plead.” Sutton, Personal Actions 104.
22. SF 101964.
23. Hancock to Longman and Wright & Gill, 16 Jan. 1771, MHi:Hancock Papers. The copy is docketed: “To Mr. Thos. Longman to be Communicated to Messers Wright & Gill abt Mein's affairs with Mr. Adams Minutes respectg the Objections to the Accots. Jany 1771. By Jarvis. By White.”
24. SF 101964.
25. See copy of the Inferior Court record, SF 101964. The Longman trial was on the fifth day of the term, and the Wright & Gill trial on the eighth day. Min. Bk., Inf. Ct. Suffolk, Jan. 1771, Nos. 43, 44. The court convened on Tuesday, 1 Jan., but apparently did not sit regularly thereafter, if the assumptions in the text are correct.
26. The depositions actually should have sufficed, under the provisions of “An Act for the More Easy Recovery of Debts in His Majesty's Plantations and Colonies in America,” 5 Geo. 2, c. 7 (1732):
“[I]n any action or suit ... brought in any court of law or equity in any of the said plantations, for or relating to any debt or account, wherein any person residing in Great Britain shall be a party, it shall and may be lawful to and for the plaintiff or defendant, and also to and for any witness to be examined or made use of in such action or suit, to verify or prove any matter or thing by affidavit or affidavits in writing upon oath, or ... affirmation, made before any mayor or other chief magistrate of the city, borough or town corporate in Great Britain, where or near to which the person making such affidavit or affirmation shall reside ...; and every affidavit or affirmation so made ... shall in all such actions and suits be allowed to be of the same force and effect, as if the person or persons making the same ... had appeared and sworn or affirmed the matters contained in such affidavit or affirmation viva voce in open court.”
All the depositions met the statutory requirements; the attestations specifically referred to the Act. SF 101964.
27. SF 89428.
28. See JA, Docket, Suff. Inf. Court, Jan. 1771, Adams Papers, where the entry for “Wright v. Same” is “Verdict for Ptf., Deft, appld.” Both cases were “Posted to Hancock & pd.”
29. Quincy, Reports 262–270 (Suffolk SCJ, March 1768).
30. Bernard to Shelburne, 12 March 1768, 6 Bernard Papers 278, MH:
“[A]s soon as [the Jury] came out of Court they sent for the Attorney General, and directed him to prepare a Bill against the next Morning. But in the Interval the Faction who conducts that Paper was indefatigable in tampering with the Jury; so that when the Business was resumed the next day, the Bill was opposed so effectually that it passed in the negative by a small Majority, some say of only one. Upon this occasion the Managers of the Papers were seen publickly to haunt the Grand Jury Men wherever they went; and the Arguments which were used in the Grand Jury Chamber were almost word for word the same which Otis had before used in Publick.”
The Boston Gazette, 21 March 1768, p. 3, col. 1, reported that at a celebration of the repeal of the Stamp Act, one of the toasts was: “The worthy and independent Grand Jurors.”
31. Boston Gazette, 28 Jan. 1771, p. 1, cols. 1–2, p. 2, cols. 1–2; 4 Feb. 1771, p. 2, col. 3. The arguments for and against rejecting the verdict may even have taken place on 4 Feb.; the appeal bonds in these cases all bear that date, and their execution may well have followed immediately upon the court's upholding the verdicts. See SF 101964.
32. At this stage there were three cases: Longman, appellant, v. Mein; Mein, appellant, v. Longman; and Mein, appellant, v. Wright & Gill. The Feb. 1771 term of the Suffolk Superior Court commenced on 19 Feb., according to the Minute Book, which gives the following history for Longman's appeal: “4th Day. The 1st Jury half fees. 25th Day. Continued to next Term by consent.” Min. Bk. 91, SCJ Suffolk, Feb. 1771, N–13. The other two cases were not called until the twentyfifth day, at which time they, too, were continued to the next term by consent. Min. Bk. 91, SCJ Suffolk, Feb. 1771, N–19 and N–20. A paper inserted in Min. Bk. 91 at the March 1770 term in Benjamin Kent's hand and signed by him shows that the original plaintiffs were allowed to file new declarations “paying Costs.”
The reference to half fees suggests that the jury had been empaneled, if not sworn, and then the case continued. A statute of 1739 had provided that in such cases, the party responsible was to pay half the normal jury fee. Act of 24 June 1739, 2 A&R 938, 939. This Act, which applied to all courts in the Province, had by its terms expired in 1742. The successor legislation, however, had been limited to the Inferior Courts and Courts of General Sessions of the Peace. Act of 15 Jan. 1743, 3 A&R 28, 29. No similar legislation covering the Superior Court appears to have been enacted, which suggests that the Superior Court may have been extending the statute by analogy.
33. Hancock had not received the accounts by 24 April 1771. Hancock to Longman, 24 April 1771, MH-BA:Hancock Letter Book, in Brown, John Hancock, His Book 96. Hancock to Wright & Gill, 24 April 1771, MH-BA:Hancock Letter Book. The accounts and the supporting affidavits appear in SF 101964. Longman's account is of special interest, being a listing of every title shipped to Mein from 1765 to 1769. Ibid. Hancock, who had been ill since April, did not report their arrival until 14 Nov. 1771. Hancock to Longman, Hancock Letter Book. There was no Nov. term of the Suffolk Superior Court. Hancock refers to the action of the court on 10 Sept. adjourning the Aug. term (which had commenced 27 Aug.) to 19 Nov. and again to 26 November. Presumably a long trial list coupled with the imminence of sittings in other parts of the Province provoked the adjournment.
34. The declarations, one in Adams' hand, the other not, are in the file, both docketed as being “filed in the Superior Court at Boston November 26th 1771,” the one in Adams' hand adding “by leave of the Court.” The new language alleged that Mein owed his creditors: (1) for the reasonable worth of the goods; (2) for money had and received; (3) for money laid out and spent; and (4) for goods sold and delivered. SF 101964.
35. The respective Minute Book entries are Min. Bk. 95, SCJ Suffolk, Aug. 1771, C–64 and C–66. Mein's appeal against Longman, which was docketed as C–65, was dismissed on the fourteenth day, its merits having been tested in Longman, appellant, v. Mein. See note 36 below. The Hancock letter appears in MH-BA:Hancock Letter Book.
36. The verdicts are in the file, SF 101964. On the back of each, in a hand not JA's, is a calculation converting the sterling amount to lawful money (by raising it one third). This is why the Minute Book, Record, and executions give the figures as £2191 19s. o 2/3d. for Longman, and £420 4s. 8d. for Wright & Gill. Longman: Min. Bk. 95, SCJ Suffolk, Aug. 1771, C–64; SCJ Rec. 1771, fol. 210; SF 120432. Wright & Gill: Min. Bk. 95, SCJ Suffolk, 1771, C–66; SCJ Rec. 1771, fols. 210 211; SF 129636.
37. SF 129636.
38. Hancock to Longman, 27 April 1771, MH-BA:Hancock Letter Book, printed in part in Brown, John Hancock, His Book 96.
39. SF 120432.
40. SF 129636.
41. Hancock to Longman, 7 Nov. 1772, MH-BA:Hancock Letter Book. The letter enclosed bills and orders totaling £757 2s. 4 1/2d., but it is not clear whether this all stemmed from the Mein affair or if some was for Hancock's own account. The total net from the executions was £1050 16s., lawful money, or approximately £787 2s. sterling. This approximates the amount Hancock sent, allowing for liquidation shrinkage and attorney's fees. “I have charged no commission, as I promised,” Hancock wrote Longman. “What little service I may have rendered you, if it be acceptable will give me pleasure.” JA's account with Hancock, receipted 21 Dec. 1771 (p. lxx above), shows for the Jan. 1772 Superior Court: “To the Sum total of the Account in the Case of Longman and Mein—£18 15s. 8d. To Ditto in Wright & Gill v. Mein—£15 5s. 8d.”
44. Statement of Black and Douglas, JJ., on the Rules of Civil Procedure and the Proposed Amendments, Amendments to the Rules of Civil Procedure for the United States District Courts 31–33 (Washington, 1963).
47. “A new trial shall be granted if the Judge of Nisi Prius misdirect the Jury, because those Trials are subject to the Inspection of the Court.” Anonymous, 2 Salk. 649, 91 Eng. Rep. 552 (Q.B. 1702), per Holt, C.J.
48. See cases collected in 2 Viner, Abridgment 485.
49. Anonymous, 1 Wils. K.B. 22, 95 Eng. Rep. 470 (1743). See Angier v. Jackson, Quincy, Reports 84–85 (Mass. SCJ, 1763), which also demonstrates the distinction.
53. Francis v. Baker, 5 Bacon, Abridgment 246 (C.P. 1763).
54. Smith v. Bramston, 2 Salk. 644, 91 Eng. Rep. 543 (K.B. 1695); see also Dunkly v. Wade, 2 Salk. 653, 91 Eng. Rep. 556 (Q.B. 1707) and Sparks v. Spicer, 2 Salk. 648, 91 Eng. Rep. 550 (K.B. 1698). Another case which appears to approve a jury finding against evidence, Deerly v. Dutchess of Mazarine, 2 Salk. 646, 91 Eng. Rep. 547 (K.B. 1696), really rests on a theory of estoppel, that a woman who is reputed to be a feme sole and lives as one may not set up her coverture as a defense to payment of her debts.
55. 5 Bacon, Abridgment 244, which cites all the cases referred to in note 54 above.
56. Vaughan 135, 124 Eng. Rep. 1006 (C.P. 1670).
57. Henry E. Care, English Liberties, or The Free-Born Subject's Inheritance 123, 124–127 (London, 1703).
58. Text at note 1989 below.
59. Vaughan at 143, 124 Eng. Rep. at 1006. For background see 1 Holdsworth, History of English Law 345. In the quotations which follow, the original emphasis has been retained.
60. Boston Gazette, 13 March 1769, p. 3, col. 1; Care; English Liberties 121.
62. Doc. II. For an example of the use of the word “direct” in this context, which does not, however, resolve the question of the binding effect of the direction, see William Torrey v. Joseph Torrey, Min. Bk. 89, SCJ Suffolk, Aug. 1769, N–59, SCJ Rec. 1769, fol. 248, an action on an account, in which JA had obtained judgment for the defendant on a sham demurrer at the July 1769 Suffolk Inferior Court. Josiah Quincy joined JA for the defendant in the Superior Court, where he again prevailed. A note from the file in the hand of Judge Trowbridge explains why: “Nothing being offered by the plaintiff in Support of his Declaration but the account in the Case Signed by Joseph Torrey The Court Were of opinion That That was not sufficient Evidence to support the plaintiff's Declaration and Directed the Jury Accordingly.” SF 101517. See JA, Docket, SCJ Suffolk, Aug. 1769, Adams Papers.
63. In Massachusetts today, the judge is not permitted to charge the jury “with respect to matters of fact.” Mass. G.L., c. 231, §81.
64. Angier v. Jackson, Quincy, Reports 84 (Mass. SCJ, 1763).
65. “At Superiour Court at Salem, Eliza Ames and her son Eames tried for poisoning his wife. They were acquitted, tho' against the mind of three in four of us Judges.” Lynde, Diary 193 (14 Nov. 1769).
67. The Censor, 14 March 1772, p. 1, col. 2.
68. Angler v. Jackson, Quincy, Reports 84–85 (1763).
69. Denny v. Williams, 5 Allen 1 (Mass. SJC, 1862).

Docno: ADMS-05-01-02-0005-0005-0002

Author: Murray, James
Author: Fleeming, John
Author: Greenleaf, Stephen
Recipient: Murray, James
Recipient: Fleeming, John
Recipient: Greenleaf, Stephen
Date: 1770-03-07
Date: 1770-03-09
Date: 1770-04-25
Date: 1770-05-04

Correspondence of James Murray, John Fleeming, and Sheriff Stephen Greenleaf1

March—May 1770
[James Murray to Stephen Greanleaf]

[salute] Sir

In order to prevent as much as may be any damage to any of the parties in the said suits or to the Officers who laid the attachments the defendants friends propose that you cause the effects attached to be appraised you chusing the appraisers for the defendant and that his friends will shew you other effects of his to the full amount of the Value appraized less perishable than those now attached on which you may lay the attachment to lie forthcoming for the judgment which shall be obtained in the said suits.
They request the favour of you that the appraisement may be as soon as possible and that Mr. John Fleeming the defendant's Attorney may have notice to attend by himself or Agent during the appraisement. I beg an answer to these proposals in writing and am in behalf of the defendant and his friends Sir Your most obedient Servant,
[signed] (Sign'd) Ja Murray

[addrLine] Stephen Greenleaf Esq. High Sheriff of said County

[Stephen Greenleaf to John Fleeming]

[salute] Sir

I yesterday saw Mr. Hancock who consents to have the Goods of Mr. Mein which were attached appraiz'd. I have therefore appointed Mr. Leverett and Mr. Edwards Booksellers to join with any one appointed by Mr. Hancock to execute that business. Mr. Hancock promised to nominate his Man this Morning and then Mr. Cudworth who made the attachment will attend them and give you notice to attend also if you please. The late disorders of the Town have a little delayed this affair which Mr. Mein's friends will excuse. Yours,
[signed] (Sign'd) S Greenleaf

[addrLine] Mr. John Fleeming

{ 217 }
[James Murray to Stephen Greanleaf]

[salute] Sir

It is with much concern for my friend Mr. Mein that I learn his Bookstore is still shut up notwithstanding the fair proposal I had the honor to make you of the 7th. of last Month, where the fault is I know not. It is not at present convenient for me to go to Town to enquire, but I have too good an opinion of you as a Gentleman and an Officer to imagine it lies at your door. I shall be much oblig'd to you for accelerating the business. I am ready to comply with my engagement. In the meantime give me leave briefly to state my friends case in confidence for the Truth of which I appeal to you. A Bookseller and printer for daring to oppose and attempting to expose a combination of several Merchants and others in the Town of Boston is hurt in his trade by many underhand practices. An attempt is made upon his life. He is driven off. Letters of procuration are obtained from his Creditors at home to a Champion of the combination. His Stock in Trade and all tools of trade are attached in his absence. His Stock is shut up from Sale. Undoubted security is offered that the Stock or the value of it should be forthcoming to satisfy the judgments that shall be obtained. That offer is rejected. A second offer is made to shew other effects of the debtors less perishable. That proposal too equitable to be flatly refused is evaded by procrastination and the Debtor thus treated in his absence is to be liable for the prime cost, accruing interest and charges of Goods which he is utterly debarr'd from selling. Is not this what was understood of Old by being compelled to make Bricks without straw. I have the honor to be respectfully Sir Your most obedient Servant,
[signed] (Sign'd Ja Murray)

[addrLine] To Stephen Greenleaf Esq. High Sheriff of Suffolk in Boston

[Stephen Greanleaf to James Murray]

[salute] Dear Sir

Your obliging Letter relative to Mr. Meins affair would have been sooner replied to had I not waited to have it in my power to have given a more pleasing Account than I am yet able to do. Various reasons may be assigned for the delays in the Appraisers. The constant attention which I have been oblig'd for Six Weeks past to pay to the Courts of Justice may serve as some part of an apology for me if any was necessary but when I assure you that nothing has been left undone by me which could be legally done in order to get Mr. Mein's Shop opened and in a course of business your goodness I am sure will lead you to excuse every thing on my part. You have been doubtless informed by Mr. Fleeming that after a considerable delay the [three?] appraisers were got together and Mr. Cudworth (whose business it { 218 } was) appointed [his?] Son to attend de Die in Diem to make out a compleat Catalogue and Inventory of the whole. Mr. Reid also attended. The appraisers finding it would take a long time <to make out a Compleat Catalogue> thought it quite unnecessary for them to be there during the Inventory being taken but agreed as they informed me that as soon as it was done they would set down the price against the several Articles. Cudworth promised to furnish them with a Copy for that purpose which I am told he delivered to Mr. Fleeming. I have since often spoke to the Appraisers but have always found a backwardness, whether owing to an influence, Business of their own or a natural disinclination I am not to say, but so it is. Mr. Leverett (one of them) has been laid up some time with the Gout. I see him this day and he hopes to be able to attend the affair the beginning of the Week when I shall push the matter having obtained a fresh promise from the other two Gentlemen to wait upon him at his own house for that purpose. Whether it won't be still delayed 'till Mr. Hancock can hear from England I know not. His constant business at Cambridge with my unwillingness to be further importunate with a Gentleman of his great superiority has really kept me from applying to him on the Subject and if I know your mind imagine you would not desire me to supplicate the favour. What I can with honor to myself and friendship to Mr. Mein get accomplished will certainly be done. Being with all possible respect Sir Your most obedient Servant,
[signed] (Sign'd) S Greenleaf

[addrLine] James Murray Esq.

1. Copies attested by John Fleeming, as attorney for John Mein, his former partner in Boston, before Justice Edmund Quincy, 29 Sept. 1770. MHi:Hancock Papers. See note 15 above.

Docno: ADMS-05-01-02-0005-0005-0003

Author: Adams, John
Date: 1771-01

Adams' Notes of Authorities1

Suffolk Inferior Court, Boston, January 1771
1771. Jany. Court. Wright and Gill vs. Mein—The Jury.
The Jury found a Verdict for the Sum sued for. Kent moved that the Verdict should be rejected. I deny'd the Power of the Court to reject it, and said if he would move for a new Tryal, that would not be without a Precedent in the Superiour Court tho it would in an inferiour Court.2
{ 219 }
13 Ed. 1. c. 30. Barrington Obs. on Stat. 103. “Item ordinatum est quod Justitiarii ad Assisas capiendas assignati, non compellant Juratores dicere precise, si sit disseisina vel non; dummodo voluerint dicere Veritatem facti, et petere Auxilium Justiciariorum; sed si sponte velint dicere quod Disseisina sit, vel non, Admittatur eorum Veredictum sub suo periculo— The latter part of this Chapter shews, that the Contest between Judges and Juries was of a very different Nature at this Time, from what it hath been of late Years. The Reason of this arises from what I have before observed, with regard to it being very common anciently to bring Attaints against Juries, and an Angry or dishonest Judge therefore drove them to the finding an improper Verdict in order to subject them to the Prosecution by Attaint; Admittatur eorum Veredictum sub suo periculo—As this Law is unrepealed, there can therefore be no doubt but a Jury may find what Verdict they please, and the Misfortune is, that they run no Risque at present of an Attaint; there is however generally that Moderation in Juries, that they seldom abuse this Liberty. This Chapter is generally called the Statute of Nisi Prius; it relates to Actions depending in Utroque Banco, without any Notice of the Court of Exchequer.”3
“If you will take upon you to determine the Law, you may do it, but you must be very sure that you determine, according to Law, for it touches your Consciences, and you Act at your Peril.” Lord Mansfield in Baldwins Case. Junius to Lord M.4
3 Black. 378. “The Jury may, if they think proper, take upon themselves to determine at their own hazard, the complicated Question of fact and Law; and without either Special Verdict or Special { 220 } Case may find a Verdict absolutely, either for Plaintiff or Defendant. Vid. page [ . . . ].”5
5. Bac. Abr. 285. 286. relating to general and Special Verdicts.6
1. Inst. 228. a. Littleton §368. “Also in such Case where the Enquest may give their Verdict at large, if they will take upon them the Knowledge of the Law, upon the Matter, they may give their Verdict generally, as is put in their Charge; as in the Case aforesaid they may well say, that the Lessor did not disseise the Lessee, if they will &c.”7 Note. “Altho the Jurie, if they will take upon them (as Littleton here saith) the Knowledge of the Law, may give a general Verdict, yet it is dangerous for them so to do, for if they mistake the Law, they run into the Danger of an Attaint, therefore to find the Special Matter, is the safest Way, where the Case is doubtfull.”8
4. Rep. 53. b. Rawlins Case. 29–30. Eliz. B.R. “And in such Case the Jury ought, if they will, not find the Special matter, and leave it to the Judgment of the Law, [to] find it at their Peril according to Law.”9
2. Ld. Ray. 1493. Oneby's Case. “The Court are Judges of the Malice and not the Jury.” Page 1494. “Upon the Tryal of the Indictment the Judge directs the Jury thus 'if you believe such and such Witnesses, who have sworn such and such Facts, the Killing the deceased was with Malice prepense express, or it was with Malice implied, and then you ought to find the Prisoner guilty of Murder; but if you do not believe those Witnesses, then you ought to find him guilty of Manslaughter only.'”10
Foster. 255. “In every Case where the Point turneth upon the Question, whether the Homicide was committed willfully and maliciously, or under Circumstances justifying, Excusing, or alleviating; the Matter of Fact, vizt., whether the Facts alledged by Way of Justification, Excuse, or Alleviation are true, is the proper and only Province of the Jury. But whether upon a Supposition of the Truth of Facts such Homicide be justified, excused, or alleviated must be submitted to the Judgment of the Court. For the Construction the Law putteth { 221 } upon Facts stated and agreed or found by a Jury is, in this, as in all other Cases, undoubtedly the Proper Province of the Court. In Cases of Doubt and real Difficulty it is commonly recommended to the Jury to state Facts and Circumstances in a Special Verdict. But when the Law is clear, the Jury under the Direction of the Court in Point of Law, Matters of Fact being still left to their Determination, may, and if they are well advised always will find a general Verdict conformable to such Direction. Ad Quaestionem Juris non respondent Juratores.”11
[1] Burrows 393. Bright Exr. vs. Eynon.12 Lord Mansfield, “Tryals by Jury, in civil Causes could not subsist now, without a Power somewhere, to grant new Tryals, &c. &c.13 If an erroneous Judgment be given in Point of Law, there are many Ways to review and set it right. Where a Court judges of Fact upon Depositions in Writing, their Sentence or Decree may, many Ways, be reviewed and set right.
“But a general Verdict can only be set right by a new Tryal,” &c.14 “The Writ of Attaint is now a mere Sound, in every Case: in many, it does not pretend to be a Remedy.”
Vid. page 3 of this Statute.15
Holt. Rep. 702. Argent vs. Darrell. Holt. “We must not make ourselves absolute Judges of Law and fact too.”16
1 Tr. pr. Pais 28317 Littleton quoted, and then a Note. “The Court cannot refuse a general Verdict, if the Jury will find it; it was so held before Justice Wyndham, Lent Assizes 1681 in Verdons Case at Cambridge.“
Whether a Jury may give a Verdict on their own Knowledge, or on the Knowledge of any one of them, without being sworn as Witnesses? { 222 } Vid. 5. Bac. Abr. 292. Tit. Verdicts.18 Vaughan 147. Bushells Case.19 1. Salk. 405.20 Farr. 2.21 1. Sid. 133. Fitz James vs. Moys.22 Cro. Eliz. 616. Graves vs. Short.23 Obs. on Stat. 7424
Holt 701. 2. Ash vs. Ash. Jury shy of giving Reasons “thinking they have an absolute Despotic Power, but I did recti[fy that] Mistake for they are to [try] Causes with the Assistance of the Judges; and ought to give Reasons when required, that if they go upon any mistake they may be set right.”25
Holt 703. 704. Gay vs. Cross. A general Verdict, and Jury would give no Reason for it. Holt said, “he never had known the like, and that he would have but little regard for the Verdict of a Jury on a Tryal that would not at a Judges desire declare the Reasons which had induced them to give it; for as the Judges of the Courts do publickly declare the Reasons of their Judgments and thereby expose themselves to the Censure of all that be learned in the Law; yet [there is] no Law obliges them to it, but it is for public Satisfaction. So the Jury ought [likewise]” when requir'd by the Court to make known the Reasons but the Court would not grant a new trial tho the Judges were very much dissatisfy'd with the Jury. It was a trial at Bar.26
{ [facing 222] } { [facing 223] } { 223 }
Attaint. Cun. Diet. Tit. Attaint. In what cases an Attaint lies.27 Gilb. H.C.B. 128.28
Obs. on Stat. 74.29 Stat. West. 1st. 3. E. 1. A.D. 1272, chap. 38.30 Le Roi (de son office) donera31 Atteint sur enquestes en pleint de terre, ou de franchise, ou de chose qui touche frank Tenement.
[It is generally agreed, that] No Prosecution by Attaint hath been carried on against a Jury for the last 300 Years.” (Note this. Lord Coke lived 150 Years ago, so that the Attaint had been disused 150 Years when he wrote.) “This arises partly from the more modern Practice of granting new Tryals, and partly from the great Difficulty there is in convicting, as the Jury may give their Verdict upon what is known to themselves, though it hath not appeared in Evidence during the Course of the Tryal. It is indeed said, that a Juror having such private Knowledge of a Fact should disclose it, in open Court; but what signifies the mere Advice of a Judge, which cannot be inforced?”32
“It may [therefore] deserve Consideration, whether this method of Punishment, being now totally disused may not have occasioned a most material Alteration, and Deviation from the Principles, upon which Juries were originally instituted.33
“The Attaint [was trial by twenty-four jurors, of double the substance with the first jury; and it is to be observed that it] lay only in civil Cases, either by common Law or by this Statute. The Reason is, { 224 } a34 strong Presumption, that no Jury would condemn a criminal contrary to the Evidence: and that it would be inconsistent with the Principles of Liberty to permit the Crown [(when it might intend oppression)] to call in Question a Verdict of Acquittal.35 Since [that glorious aera] the Revolution, [the] Kings [of England] have [only] prosecuted as Patriae Patrise [when punishment hath been necessary for the safety of the whole]; but when we look into Tryals during preceeding Reigns, we cannot but revere the wise and noble Constitution established by our Ancestors against the vindictive Prosecution of a Plantaganet and36 a Stewart.”37
Common Law.
Black. 63. bott. “[But, with us at present,] The Monuments and Evidences of our legal Customs, are contained in the Records of the several Courts of Justice, in Books of Reports, and judicial Decisions and in the Treatises of learned Sages of the Profession, preserved and handed down to us, from the Times of highest antiquity.”38 Page 73. “[And thus much for] the 1st. ground and chief corner Stone of the Laws of England, [which] is, general immemorial Custom, or common Law from Time to Time declared in the Decisions of the Courts of Justice; which Decisions are preserved among our public Records, explained in our Reports and digested for general Use, in the Authoritative Writings of the venerable Sages of the Law.”39
Question 1st. “Does the Opinion mean to declare, that upon the general Issue of Not Guilty, in the Case of a seditious Libel, the Jury have no Right by Law to examine the Innocence or Criminality of the Paper, if they think fit, and to form their Verdict with such Examination?
“2. Does the Opinion mean to declare, that in the Case above mentioned, when the Jury have delivered in their Verdict, Guilty, that this Verdict has found the Fact only, and not the Law?
{ 225 }
“3. It is to be understood by this Opinion, that if the Jury come to the Bar, and say, that they find the printing and publishing, but that the Paper is no Libel, that in that Case the Jury have found the Defendant, guilty, generally and that the Verdict must be so entered up?
“4. Whether the Opinion means to say, that if the Judge, after giving his Opinion of the Innocence or Criminality of the Paper, should leave the Consideration of that matter, together with the printing and publishing, to the Jury, such a Direction would be contrary to Law?
“5. I beg Leave to ask, whether dead and living Judges, then absent, did declare their Opinions in open Court, and whether the noble L—d has any Note of such opinions?
“6. Whether they declared such Opinions, after solemn Arguments, or upon any Point judicially before them?”
Questions put by Lord C——n to Lord M——d in answer to a Paper his Lordship left with the Clerk of the Room the day before. M——d refused to answer these Questions, saying he would not answer interrogatories. Newspaper.40
4. Blackstone 35441[But] An open Verdict may be either general, guilty, or not guilty; or Special, setting forth all the Circumstances of the Case, and praying the Judgment of the Court, whether for Instance, on the Facts stated, it be murder, Manslaughter, or no Crime at all. This is where they doubt the matter of Law, and therefore chuse to leave it to the determination of the Court; though they have an unquestionable Right of determining upon all the Circumstances, and finding a general Verdict, if they think proper so to hazard a Breach of their Oaths: and, if their Verdict be notoriously wrong, they may be punished and the Verdict set Aside by Attaint at the Suit of the King; but not at the Suit of the Prisoner, 2. H.P.C. 310.42 But the Practice, heretofore in Use of fining, imprisoning, or otherwise punishing Juries merely at the discretion of the Court, for finding their { 226 } Verdict, contrary to the direction of the Judge, was arbitrary, unconstitutional, and illegal: and is treated as such by Sir Thomas Smith, 200 Years ago; who 'accounted such doings to be very violent, tyrannical, and contrary to the Liberty and Custom of the Realm of England.'43 For as Sir Mathew Hale well observes 2. H.P.C. 31344 'it would be a most unhappy Case, for the Judge himself, if the Prisoners Fate depended upon his Directions: unhappy also for the Prisoner; for, if the Judges opinion must rule the Verdict, the Tryal by Jury would be useless.' Yet in many Instances, 1 Lev. 9,45 T. Jones 163,46 St. tr. 10. 416,47 where contrary to Evidence the Jury have found the Prisoner guilty, their Verdict hath been mercifully set aside, and a new Tryal granted by the Court of Kings Bench: for in such Case as hath been said, it cannot be set right by Attaint. But there hath yet been no Instance of granting a new Tryal, where the Prisoner was acquitted upon the first. 2. Hawk. 442.”48
4. Black. 431.49 The establishment of New Tryals, with the abolition of feodal Tenures, and the Act of Navigation, came out of the Times of Confusion.
5. Rep. 104.50 Bakers Case. “Upon Evidence in an Ejectione firmae between Middleton and Baker, it was resolved by the whole Court, that if the Plantiff in Evidence sheweth any matter in Writing, or of Record, or any Sentence in the ecclesiastical Court, upon which a Question in Law doth arise, and the Defendant offereth to demurr in Law upon it, the Plantiff cannot refuse to join in Demurrer, but he { 227 } ought to join in the Demurrer or waive his Evidence. So if the Plantiff produceth Witnesses to prove any matter in Fact, upon which a Question in Law doth arise, if the Defendant admitteth their Testimony to be true, there also the Defendant may demurr in Law upon it, but then he ought to admit the Evidence given by the Plantiff to be true; and the Reason hereof is, that matter in Law shall not be put to Laymen. So may the Plantiff demurr upon the Defendants Evidence, mutatis mutandis; But if Evidence be given for the King, in Information or other suit, and the Defendant offer to demurr upon it, the Kings Council are not tied to join in Demurrer, but in such Case the Court ought to direct the Jury to find the Special matter, and upon that they shall adjudge the Law as it appeareth 34. H. 8. Dyer 53.51 But that is by the Kings Prerogative who also may waive a Demurrer, and take issue at his Pleasure quod Nota.”
Mem. every Thing that is said by the Court to the Jury, is uniformly styled in our Books a Direction. So the Court give a Charge to the grand Jury to present a particular offence, &c. But the Question is whether the Jury are bound, in Point of Conscience, or of Law, to observe that Direction and find according to it? Are they subject to any Penalty, or Fine, or Imprisonment, or corporal Punishment, if they find contrary to that Direction? No Man will say that they are.52
Question. Whether Ind[ebitatus] Ass[umpsit] may be maintained for “Sundries” or “Sundry Goods Wares and Merchandizes,” or “sundry Goods Chattells and Articles,” without any Account or Schedule of Particulars annexed to the Writ, or enumerated in the Declaration. Saunders 69. Peacock vs. Bell & Kendal, 70, 71.
“Ind. fuisset pred. Ri. and Ben. in £39 L.M.” “Pro diversis Merchandizis et Mercimoniis, per pred. Ri. and Ben. eidem Johanni Peacock, ad Specialem instanciam et Requisitionem ipsius Jo. Peacock, ante Tempus i[llud] vendit et deliberat. Et sic &c.”53
{ 228 }
2. Instructor cler. 161, 2. “If one be indebted unto another upon simple Contract, and the Plantiff sue for it upon a Promise to pay it, he must shew how the first Debt grew due and for what; as upon an Ind[ebitatus] Ass[umpsit] where the Debt is the Consideration of the Promise.”54
Sed Vid. [ . . . ]55 is not said how particular you must be. See 2. Ins. Cler. 157 a Declaration for diverse Merchandizes sold and deliverd.56
1. In JA's hand. Adams Papers, Microfilms, Reel No. 185. These notes were written on several sheets which may once have formed a gathering but are now loose and worn. JA partly paged them, but the order of the material, written at different times and hurriedly, is not always clear.
2. In the margin appears the following: “See, however, The several Titles of Mistrial, New Tryal &c. Verdict may be set aside and a venire facias de novo [new jury, that is, new trial] awarded.” The precise treatise or treatises to which JA here refers have not been identified. See, however, 5 Bacon, Abridgment 240, tit. Trial: “A new Trial ought not to be granted by an inferior Court, and if the Judge thereof does grant one a Mandamus lies for a Procedendo ad Judicium upon the first Verdict.”
3. Barrington, Observations upon the Statutes 103–104. Quotation marks supplied. The Latin expression is from the Statute of Westminster II, 13 Edw. 1, c. 30 (1285): “And also It is Ordained, That the Justices assigned to take Assises shall not compel the Jurors to say precisely whether it be Disseisin or not, so that they do shew the Truth of the Deed [fact] and require Aid of the Justices; but if they of their own head will say, that it is [or is not] Disseisin, their Verdict shall be admitted at their own Peril.” 1 Statutes of the Realm. 86 (London, 1810).
4. This paragraph is written in the margin. Quotation marks supplied. Rex v. Baldwin (K.B. 1770) was apparently never reported. See 20 State Trials 922; Frederick Siebert, Freedom of the Press in England 387–388 (Urbana, 111., 1952). The quotation here is taken, with only pronominal changes, from Junius' letter to Lord Mansfield, 14 Nov. 1770 (No. XLI), 2 Letters of Junius 159, 174–175 (London, ed. Woodfall, 1814).
5. 3 Blackstone, Commentaries *378. Quotation marks supplied. This paragraph is also written in the margin.
6. 5 Bacon, Abridgment 285–287. This collects the authorities, many of which JA cites or quotes later in the present minute.
7. Coke, Littleton 228a. Quotation marks supplied.
8. Coke, Littleton 228a. The note is Coke's. Quotation marks supplied.
9. Rawlyn's Case, 4 Co. Rep. 52a, 53b, 76 Eng. Rep. 1007 (K.B. 1585). Quotation marks supplied. JA has erroneously inserted a comma between “they will” and “not find”; also “it” between “find” and “at their Peril.”
10. Rex v. Oneby, 2 Ld. Raym. 1485, 1493–1494, 92 Eng. Rep. 465, 470–471 (K.B. 1727). Quotation marks in part supplied.
11. Foster, Crown Cases 255–256 (1762). Quotation marks supplied. The Latin phrase means, roughly: “The jurors do not answer questions of law.”
12. Bright, Executor v. Eynon, 1 Burr. 390, 393, 97 Eng. Rep. 365, 366 (K.B. 1757). Quotation marks supplied. Action on note to testatrix; defense: discharge in defendant's hand, signed by testatrix; reply: forgery. No evidence of the forgery being introduced, the trial judge (Lord Mansfield) left it to the jury to say whether there had been (1) forgery or (2) fraud. The jury found for the defendant. On motion for new trial, held, rule to set aside verdict made absolute, because by “the Evidence on both Sides, the Transaction to get her Hand to this Writing must have been fraudulent.” 1 Burr, at 396, 97 Eng. Rep. at 368.
13. The “&c.'s” do not appear in the printed text.
14. JA omits: “which is no more than having the Cause more deliberately considered by another Jury; when there is a reasonable Doubt, or perhaps a Certainty, that Justice has not been done.”
15. Marginal note. The reference is obscure.
16. Argent v. Sir Marmaduke Darrell, Holt K.B. 702, 90 Eng. Rep. 1288 (1699). Quotation marks supplied. This paragraph appears in the margin of the MS.
17. Duncombe, Trials Per Pais 283 (1766). The quotation from Littleton appears in the JA minutes, at note 777 above.
18. 5 Bacon, Abridgment 292. The general subject is “In What Cases a Verdict is Bad Upon the Account of a Misdemeanor in One or More of the Jurors”; and at the page cited Bacon collects authorities (including those in the next four footnotes) on the question whether the jury's verdict must rest solely on evidence adduced in court.
19. Bushell's Case, Vaughan 135, 147, 124 Eng. Rep. 1006, 1012 (C.P. 1670): “[The jurors] may have Evidence from their own personal knowledge, by which they may be assur'd, and sometimes are, that what is depos'd in Court, is absolutely false. ... The jury may know the Witnesses to be stigmatiz'd and infamous, which may be unknown to the parties, and consequently to the Court.” For a discussion of Bushell's Case see text at notes 56–60 above.
20. Anonymous, 1 Salk. 405, 91 Eng. Rep. 351 (K.B. 1696): “If a jury give a Verdict on their own Knowledge, they ought to tell the Court so, that they may be sworn as Witnesses; and the fair Way is to tell the Court before they are sworn, that they have evidence to give.”
21. Note, Farr. (7 Mod.) 2, 87 Eng. Rep. 1056 (Q.B. 1702), a paraphrase of the case in note 9020 above.
22. Fitz-James v. Moys, 1 Sid. 133, 87 Eng. Rep. 1014 (K.B. 1663): One of the jury, having heard the evidence, was himself sworn as a witness, testified, and yet continued on the jury.
23. Graves v. Short, Cro. Eliz. 616, 78 Eng. Rep. 857 (Q.B. 1598). No error for juror to show his fellows a paper not otherwise in evidence but favoring one of the parties. The case is cited in 5 Bacon, Abridgment at 291.
25. Ash v. Lady Ash, Holt K.B. 701–702, 90 Eng. Rep. 1287 (1696). Quotation marks and words JA omitted are supplied. This paragraph appears in the margin of the MS and is partly worn away.
26. Gay v. Cross, Holt K.B. 703, 90 Eng. Rep. 1288 (1702). Quotation marks and words JA omitted are supplied. This paragraph was inserted in the margin and between paragraphs written earlier in the MS.
27. Cunningham, Law Dictionary, tit. Attaint: “[S]o this is the only curb that the law has put in the hands of the judges to restrain jurors from giving corrupt verdicts.”
28. Gilbert, Common Pleas 128: “Now the Jury may be attainted two Ways; First, where they find contrary to Evidence, 2dly, where they find out of the Compass of the Allegata; but to attaint them for finding contrary to Evidence is not easy, because they may have Evidence of their own Conuzance of the Matter by them, or they may find upon Distrust of the Witnesses on their own proper Knowledge.”
29. Barrington, Observations upon the Statutes 74. Quotation marks are supplied throughout the passages from Barrington, text at notes 32, 33, and 37102, 103, and 107, below.
30. Thus in MS and Barrington, Observations upon the Statutes 58. The correct date is 1275, 1 Statutes of the Realm 36 (1810). Statute of Westminster II, 3 Edw. 1, c. 38: “[T]he King, of his office, shall from henceforth grant Attaints upon Enquests in Plea of Land, or of Freehold, or of anything touching Freehold, when it shall seem to him necessary.”
31. Thus in MS. “Durra” in Barrington, Observations upon the Statutes 74, and in the statute. Barrington, Observations upon the Statutes 74 note, says: “De son office should be translated of right ...; durra, which follows, is put corruptly for donera.”
32. Barrington, Observations upon the Statutes 74. Quotation marks and words JA omitted are supplied. JA omits Barrington's footnote: “It should seem to have been understood in the time of Henry the Third, to have been the duty of the judge to control the verdict of the jury,” citing Bracton, lib. iv, c. 19.
34. Thus in MS. The text reads: “The reason of which seems to have been grounded upon the strong Presumption.” Barrington, Observations upon the Statutes
35. Beside the words in brackets, JA omits: “It is for the same reason when a crime is prosecuted by appeal (the remedy of a private person) and not by indictment (which is the suit of the crown), that there is no intervention of a grand jury to find the bill. Happily for this country ...”
36. Thus in MS; “or” in Barrington.
37. Barrington, Observations upon the Statutes 75. Words JA omitted are supplied.
38. 1 Blackstone, Commentaries *63–64. Closing quotation marks supplied.
39. 1 Blackstone, Commentaries *73. Closing quotation marks supplied.
40. Quotation marks supplied. Lord Mansfield's conduct of the trial of Woodfall for the publication of the Junius letters having been the subject of Parliamentary debate, Mansfield deposited with the Clerk of the House a copy of his charge to the jury in that case. The next day, 11 Dec. 1770, Lord Camden propounded these questions, which Mansfield never answered. 16 Parliamentary History 1312–1322 (London, 1813); C. H. S. Fifoot, Lord Mansfield 44–46 (Oxford, 1936); James Stephen, History of the Criminal Law of England, 2:325–326 (London, 1883). Camden was a legal hero to the patriots, Quincy on one occasion referring to him as “undoubtedly the first common lawyer in England.” Josiah Quincy, Josiah Quincy, Jr. 272. Which “Newspaper” JA took these “Questions” from is not known.
41. 4 Blackstone, Commentaries *354–355. Quotation marks in part supplied.
42. 2 Hale, Pleas of the Crown 310, discusses the means of punishing a jury for finding against evidence.
43. Thomas Smith, Commonwealth of England and Manner of Government Thereof 203 (London, 1640).
44. 2 Hale, Pleas of the Crown 313: “And to say the truth, it were the most unhappy case that could be to the judge, if he at his peril must take upon him the guilt or innocence of the prisoner, and if the judge's opinion must rule the matter of fact, the trial by jury would be useless.”
45. Rex v. Read, 1 Lev. 9, 83 Eng. Rep. 271 (K.B. 1661): No new trial in the event of an acquittal.
46. Rex v. Smith, T. Jones 163, 84 Eng. Rep. 1197 (K.B. 1682): Verdict of guilty, against the judge's direction, set aside and new trial awarded.
47. Ashley v. Simons the Jew, 10 State Trials 411 (K.B. 1752); reported also from MSsub nom. Rex v. Simonds, 5 Bacon, Abridgment 243. The facts appear in No. 59, note 1807.
48. 2 Hawkins, Pleas of the Crown 442: “[I]t hath been adjudged, That if the Jury acquit a Prisoner of an Indictment of Felony against manifest Evidence, the Court may, before the Verdict is recorded, but not after, order them to go out again and reconsider the Matter; but this is by many thought hard, and seems not of late Years to have been so frequently practiced as formerly.”
50. Baker's Case, 5 Co. Rep. 104a, 77 Eng. Rep. 216 (Q.B. 1600). Quotation marks supplied.
51. Rex v. Muschampt, Dyer 52b, 53b, 73 Eng. Rep. 116 (Exch. 1543): Information for maintenance and buying of pretended titles. “[T]he Court charged the jury to enquire of the whole matter, and to find it, and upon such finding the Court would adjudge upon the law.”
52. The state of the MS suggests that this paragraph was written at a later time than the one which precedes it. The observations are apparently original with JA.
53. Peacock v. Bell and Kendal, 1 Saund. 69, 71, 85 Eng. Rep. 81, 82 (K.B. 1667). Quotation marks supplied. “[Peacock] was indebted to the said Richard [Bell] and Benjamin [Kendal] for £39 lawful money ... for divers merchandises and wares which the said Richard and Benjamin had before that time sold and delivered to the same John Peacock at his special instance and request.” There is dictum in the report that the declaration as here set out was faulty for failure to allege where the goods had been sold and delivered.
54. Gardiner, Instructor Clericalis 161–162. Quotation marks supplied.
55. This is a marginal note, with a tear in the MS.
56. Gardiner, Instructor Clericalis 157. The declaration there set out does not allege the place where the goods were delivered.

Docno: ADMS-05-01-02-0005-0005-0004

Author: Adams, John
Date: 1771-02-12

Adams' Diary Notes on the Right of Juries1

1771. Feby. 12.
At a Time, when the Barriers against Popery, erected by our Ancestors, are suffered to be destroyed, to the hazard even of the Protestant Religion: When the system of the civil Law which has for so many Ages and Centuries, been withstood by the People of England, is permitted to become fashionable: When so many Innovations are introduced, to the Injury of our Constitution of civil Government: it is not surprizing that the great Securities of the People, should be invaded, and their fundamental Rights, drawn into Question. While the People of all the other great Kingdoms in Europe, have been insidiously deprived of their Liberties, it is not unnatural to expect that such as are interested to introduce Arbitrary Government should see with Envy, Detestation and Malice, the People of the British Empire, by their Sagacity and Valour defending theirs, to the present Times.
There is nothing to distinguish the Government of Great Britain, from that [of] France, or of Spain, but the Part which the People are by the Constitution appointed to take, in the passing and Execution of Laws. Of the Legislature, the People constitute one essential Branch–And while they hold this Power, unlimited, and exercise it frequently, as they ought, no Law can be made and continue long in Force that is inconvenient, hurtful, or disagreable to the Mass of the society. No Wonder then, that attempts are made, to deprive the Freeholders of America and of the County of Middlesex, of this troublesome Power, so dangerous to Tyrants and so disagreable to all who { 229 } have Vanity enough to call themselves the better Sort.–In the Administration of Justice too, the People have an important Share. Juries are taken by Lot or by Suffrage from the Mass of the People, and no Man can be condemned of Life, or Limb, or Property or Reputation, without the Concurrence of the Voice of the People.
As the Constitution requires, that, the popular Branch of the Legislature, should have an absolute Check so as to put a peremptory Negative upon every Act of the Government, it requires that the common People should have as compleat a Controul, as decisive a Negative, in every Judgment of a Court of Judicature. No Wonder then that the same restless Ambition, of aspiring Minds, which is endeavouring to lessen or destroy the Power of the People in Legislation, should attempt to lessen or destroy it, in the Execution of Lawes. The Rights of Juries and of Elections, were never attacked singly in all the English History. The same Passions which have disliked one have detested the other, and both have always been exploded, mutilated or undermined together.
The british Empire has been much allarmed, of late Years, with Doctrines concerning Juries, their Powers and Duties, which have been said in Printed Papers and Pamphlets to have been delivered from the highest Trybunals of Justice. Whether these Accusations are just or not, it is certain that many Persons are misguided and deluded by them, to such a degree, that we often hear in Conversation Doctrines advanced for Law, which if true, would render Juries a mere Ostentation and Pagentry and the Court absolute Judges of Law and fact. It cannot therefore be an unseasonable Speculation to examine into the real Powers and Duties of Juries, both in Civil and Criminal Cases, and to discover the important Boundary between the Power of the Court and that of the Jury, both in Points of Law and of Fact.
Every intelligent Man will confess that Cases frequently occur, in which it would be very difficult for a Jury to determine the Question of Law. Long Chains of intricate Conveyances; obscure, perplext and embarrassed Clauses in Writings: Researches into remote Antiquity, for Statutes, Records, Histories, judicial Decisions, which are frequently found in foreign Languages, as Latin and French, which may be all necessary to be considered, would confound a common Jury and a decision by them would be no better than a Decision by Lott. And indeed Juries are so sensible of this and of the great Advantages the Judges have [to] determine such Questions, that, as the Law has given them the Liberty of finding the facts specially and { 230 } praying the Advice of the Court in the Matter of Law, they very seldom neglect to do it when recommended to them, or when in any doubt of the Law. But it will by no Means follow from thence, that they are under any legal, or moral or divine Obligation to find a Special Verdict where they themselves are in no doubt of the Law.
The Oath of a Juror in England, is to determine Causes “according to your Evidence”–In this Province “according to Law and the Evidence given you.” It will be readily agreed that the Words of the Oath at Home, imply all that is expressed by the Words of the Oath here. And whenever a general Verdict is found, it assuredly determines both the Fact and the Law.
It was never yet disputed, or doubted, that a general Verdict, given under the Direction of the Court in Point of Law, was a legal Determination of the Issue. Therefore the Jury have a Power of deciding an Issue upon a general Verdict. And if they have, is it not an Absurdity to suppose that the Law would oblige them to find a Verdict according to the Direction of the Court, against their own Opinion, Judgment and Conscience.
[It] has already been admitted to be most advisable for the Jury to find a Special Verdict where they are in doubt of the Law. But, this is not often the Case–1000 Cases occur in which the Jury would have no doubt of the Law, to one, in which they would be at a Loss. The general Rules of Law and common Regulations of Society, under which ordinary Transactions arrange themselves, are well enough known to ordinary Jurors. The great Principles of the Constitution, are intimately known, they are sensibly felt by every Briton—it is scarcely extravagant to say, they are drawn in and imbibed with the Nurses Milk and first Air.
Now should the Melancholly Case arise, that the Judges should give their Opinions to the Jury, against one of these fundamental Principles, is a Juror obliged to give his Verdict generally according to this Direction, or even to find the fact specially and submit the Law to the Court. Every Man of any feeling or Conscience will answer, no. It is not only his right but his Duty in that Case to find the Verdict according to his own best Understanding, Judgment and Conscience, tho in Direct opposition to the Direction of the Court.
A religious Case might be put of a Direction against a divine Law.
The English Law obliges no Man to decide a Cause upon Oath against his own Judgment, nor does it oblige any Man to take any Opinion upon Trust, or to pin his faith on the sieve of any mere Man.
1. 2 JA, Diary and Autobiography3–5. As to the genesis of this material, see id. at 5 note.

Docno: ADMS-05-01-02-0006-0001-0001

Editorial Note

Although there was no court of equity in provincial Massachusetts, the law courts were able to develop the real estate mortgage into an effective and flexible instrument of finance. In the usual transaction the mortgagor gave the mortgagee an obligation in the form of a bond or note for the amount borrowed; this obligation was secured by the mortgage itself, a deed to the mortgaged premises in fee simple, conditioned on the repayment of the sum covered by the obligation. Both the liability of the land and the general personal liability of the mortgagor were thus established. In the event of default the mortgagee could bring an action on either obligation or mortgage, but he could proceed only at law.1 If common law forms had been followed literally in these suits, injustice might have resulted. In some cases at least, the plaintiff could have recovered both land and money, and, in an action on a sealed obligation such as a bond, payment other than according to the precise terms of the instrument would not have been a bar. Further, the common law did not recognize the mortgagor's right, protected by the court of equity in England, to redeem the lands by tender of the debt and costs after the time for payment had run.2
Such defects might have discouraged potential borrowers from offering their lands as security, had it not been for a Massachusetts Act of 1698 which gave the common-law courts the equity powers necessary to overcome them. Under the statute in actions brought on sealed instruments and on mortgages when judgment or verdict was for the plaintiff, the court was empowered “to moderate the rigour of the law and on consideration of such cases, according to equity and good conscience to chancer the forfeiture, and enter up judgment for the just debt and damages.” In real { 232 } actions on mortgages the judgment was “to be conditional,—that the mortgager or vender, or his heirs, executors or administrators do pay unto the plaintiff such sum as the court shall determin to be justly due thereupon, within two months time after judgment entred up for discharging of such mortgage or sale, or that the plaintiff recover possession of the estate sued for, and execution to be awarded for the same.”3 By the same Act, “where any mortgagee or vendee of any houses or lands granted on condition hath recovered, or entred into and taken possession of the same for the condition broken,” the mortgagor within three years after entry could tender the unpaid balance and costs and disbursements in court and have possession restored by quitclaim deed from the mortgagee or a purchaser, or by judgment.4
Thus, under the statute if the mortgagee sued upon his bond, he could recover the actual debt, but not the penalty of double the face value usually attached to such instruments; moreover, the debtor presumably was credited with any partial satisfaction which he had made. If the mortgagee wished to proceed against the land, he might either enter peaceably, or sue for it in ejectment, asserting his title under the mortgage deed. In the latter event he could enter under a judgment in his favor if the mortgagor did not pay the debt within two months. In either case the mortgagee's title became absolute if the mortgagor did not redeem within three years after entry. This was the process of strict foreclosure, still substantially in effect in Massachusetts. It resembled the procedure at equity in England, with the significant difference that there the court had unlimited discretion to open up the foreclosure for redemption if justice required.5
There was the further difference that in England, if the mortgagee re• { 233 } covered the land through foreclosure, a subsequent action against the mortgagor on his personal obligation opened up the right to redeem, although the land might be worth less than the debt. The cases are not clear, but there even seems to have been some 18th-century authority for the proposition that foreclosure barred an action on the bond altogether, unless the premises had been sold by the mortgagee. In England and in many of the United States, these problems were ultimately met by the device of foreclosure by sale, the usual modern practice, in which on a bill to foreclose the court will order a sale of the property and adjudge any deficiency against the mortgagor, but will allow him to take a surplus.6Prout v. Minot shows that, although provincial Massachusetts had not developed foreclosure by sale, the courts were able to accommodate the conflict between recovery on the land and recovery on the debt through flexible use of the statutory procedures just discussed.
The case arose out of a complicated series of transactions. Timothy Prout borrowed £100 from Christopher Minot in December 1753, giving a mortgage of his real estate on Milk Street in Boston and a bond in the penal sum of £200 to secure the loan. In October 1755 Prout gave a second bond and mortgage on the same property to one William Brown for a loan of £184. Two years later Brown foreclosed in an action on the second mortgage and was awarded possession in December 1757. In December 1758 Minot assigned to Brown his rights in Prout's first bond and mortgage for a consideration of £112, the sum of the principal and unpaid interest. Brown, having rid himself of this encumbrance, was apparently content with his bargain until the house on the mortgaged premises was destroyed in the great fire of March 1760, which significantly reduced the value of his investment.7
{ 234 }
At the July 1761 Suffolk Inferior Court an action of debt on the first bond was commenced against Prout in Minot's name, a procedure made necessary by the common-law rule against assignments of “choses in action,” that is, rights legally accrued but not reduced to possession. That Brown, rather than Minot, was the real party in interest seems certain from the fact that the instrument by which the bond was assigned gave the former power to sue upon it and keep the proceeds. At the April 1762 term, after argument on the pleadings, the court held Prout's plea in confession and avoidance bad and awarded Minot “chancery” of £136 6s., the actual amount of the debt plus interest.8
Prout appealed to the Superior Court, where at the August 1762 term argument was again had on the lower court pleadings. Prout's plea, which had been filed by Oxenbridge Thacher, averred Minot's assignment of bond and mortgage to Brown, and alleged that on the day of the assignment Brown had elected to enter upon the premises for nonpayment of the sum secured, rather than to sue upon the bond. Minot's replication, by Richard Dana, denied that the entry was for nonpayment as alleged. Thacher demurred, asserting that the replication contained a negative pregnant (a denial of a particular allegation which implicitly admits the rest). Dana, joined by Jeremy Gridley, countered by attacking the plea, a permissible tactic at common law, because a demurrer at any stage made all of the pleadings fair game for either side. The ground of the attack was that Brown's election was not a bar to the action, since an entry under the { 235 } mortgage did not discharge the bond. The court in a unanimous opinion upheld this contention and found the plea bad. Prout, however, was not content with the usual procedure by which the court chancered the bond to the debt appearing in the record. He asked for and was granted leave to be heard further “in chancery” at the next term.9
Accordingly, he filed a “Bill in Chancery” (Document I), at the February 1763 session of the court, setting forth the facts and praying relief from what he urged was an inequitable double recovery in Brown's behalf. The matter was continued term by term until it finally came on in August 1766. Samuel Fitch now argued for Prout against Dana and Gridley. Adams was not of counsel, but made brief minutes of the argument and opinion, which are printed as Document II.
Fitch produced authorities to show that assignments of choses in action are invalid at law but convey a right which the assignee alone can enforce in equity. His point seems to have been that since this was in effect an equitable proceeding, the court should treat Brown as the real party in interest, even though the action was in Minot's name. This position could have been the basis for an argument that Brown should not recover because he did not have a claim to the bond which a court of equity would recognize. His acquisition of the mortgagee's title by assignment after he had acquired the mortgagor's equity through foreclosure could be said to have effected a merger which extinguished the debt. Adams' notes do not show whether Fitch pressed such a contention, but he must at least have argued that if Brown had an equitable claim, his entry on the land had satisfied it, and there could be no recovery in his behalf against the bond. Implicit in these positions was the basic equitable argument, expressly made in Prout's bill (Document I), that, even if merger and entry were not absolute bars, the action should not lie because at the time of entry the land had been worth more than both bonds together.
According to Adams, Gridley “Seem'd to conceed” that the action was really in Brown's behalf, probably because there were ample grounds on which to argue that he was not barred. The court apparently found these grounds adequate, since, despite the concession, it entered judgment against Prout for £176 10s., the principal of the bond, with 6 percent interest from the date of the last payment in 1756.10
Although it is not clear that the merger argument was raised, the result in this case is consistent with later authority on the question. In 1849 Chief Justice Shaw of Massachusetts, in an opinion synthesizing earlier English and American decisions, announced the proposition that a merger of the { 236 } equity and the mortgage takes place when the purchaser of the mortgage is under a duty to clear the equity from the encumbrance, or, in the absence of such a duty, the purchaser has no proper interest in keeping mortgage and equity separate.11 Under this theory one who purchases the equity of redemption at its actual value and then takes an assignment of the mortgage cannot maintain an action on the obligation against the mortgagor, because the gist of the purchaser's bargain is that, having bought the equity for less than the full value of the land, he will pay the rest of the price by indemnifying the mortgagor against the debt. This he does either by paying to the mortgagee the amount due, or by allowing the land to be taken in satisfaction. He is doing no more than fulfilling his bargain when he pays the mortgagee for an assignment. It would be inequitable if he could also recover the amount so paid against the mortgagor personally, because he would end up with clear title, but would be out of pocket only what he had bargained to pay for an encumbered title.12
Brown, however, did not purchase the equity outright, but obtained it only in an effort to satisfy the mortgagor's debt to him. The bargain out of which that debt arose was that Brown should get back the money which he had loaned, not that he should become obligated to pay out further sums. Thus, when Brown bought the first mortgage, he was not performing a contractual duty to the mortgagor, but was acting to protect his own investment from the effects of the mortgagor's default. Since he had not bargained to pay the debt, it would have been inequitable if he could not have recovered what he had paid out both on his own loan to Prout and for the assignment from Minot.13 If the value of the land had been { 237 } sufficient to provide this recovery, there still would have been a merger, because Brown would have had no valid interest in preserving the obligation. If there was a deficiency, however, the obligation would survive as a basis for action against the mortgagor.14
Adams' notes show that the court did deal with the question of recovery against the bond after recovery of the land. Justice Benjamin Lynde apparently recalled the court's earlier ruling on demurrer that an entry under the mortgage did not bar an action on the bond. The result here carried the principle further, asserting the mortgagee's right not only to pursue both remedies, but to take satisfaction out of both sources up to the amount of the debt. The complexities of English practice were rejected in favor of a simple rule, focused on the debt rather than the security, which was characteristic of later American mortgage law.15
{ 238 }
The questions whether Prout's personal obligation survived in Brown's hands and, if it did, whether Brown could pursue it despite his entry under the mortgage, both turned on the value of the land. If this figure exceeded the amount of the debt, Prout's complaint was justified and Brown should have been barred. If there was a deficiency, however, it was equitable for Prout to be responsible for all of his indebtedness. The total of principal and interest on the two debts was at least £481.16 Prout alleged in his bill (Document I) that in 1758, when Brown entered, the premises were worth more than the debt, but the only figures which he set forth were 1760 values of £200 for the house and “at least” £133 6s. 8d. for the land. Accepting these figures and adding in Prout's figures of £50 for rent at £20 a year from Brown's first entry in December 1757 until the fire in March 1760, there would still have been a deficiency of nearly £100.17 Thus, even by Prout's calculations, Brown was entitled to recover against the bond, and the only question open was the amount. The court's actual award of £176, the maximum possible on the bond, was probably based on the value of the land after the fire, when the deficiency would have been nearly £300. This valuation seems harsh from Prout's standpoint, but it could have been justified by the fact that Brown's title was subject to Prout's right to redeem until December 1761. It might have been argued that in the determination of a deficiency the mortgagee's interest cannot fairly be valued until foreclosure is complete and his title is absolute in equity as well as at law.18
1. Even today a mortgage may be given without a note, thus freeing the mortgagor from personal liability. Dual liability is the general rule, however, as it was both in Massachusetts and England in the 18th century. See note 6 below. See also Symes v. Hill, Adams Papers, Microfilms, Reel No. 185, Quincy, Reports 318 (SCJ Middlesex, 1771); Ivers v. Hooper, et al., 4 Dane, Abridgment 184 (SJC Essex, 1801); Charles A. Jackson, A Treatise on the Pleadings and Practice in Real Actions 50–51 (Boston, 1828); Garrard Glenn, Mortgages, Deeds of Trust and Other Security Devices as to Land, 1:25–28 (Charlottesville, Va., and N.Y., 1943).
2. As to the nonavailability of the equitable defenses of payment and accord and satisfaction at common law, see James Barr Ames, Lectures on Legal History 109–111 (Cambridge, Mass., 1913). As to the equity of redemption, see 1 Glenn, Mortgages 11–17, 234–313; R. W. Turner, The Equity of Redemption, passim (Cambridge, 1931).
3. Act of 10 Dec. 1698, c. 22, §1, 1 A&R 356. See Watts v. Hasey, Quincy, Reports 194 (SCJ Suffolk, Aug. 1765). This statute was the first to provide specifically for mortgages, although after 1648 the judges of the Court of Assistants in the Massachusetts Bay Colony had had power to determine “any matter of apparent equitie, as upon the forfeiture of an Obligation, breach of Covenant without damage, or the like.” The Laws and Liberties of Massachusetts 32 (Cambridge, Mass., 1929). Under this act the court would “chancery” a bond, presumably to the actual amount of the debt. See, for example, Bennet v. Gridley (1677), Records of the Court of Assistants of the Colony of Massachusetts Bay, 1630–1692, 1:82 (Boston, ed. John Noble, 1901); Dyre v. Hutchinson (1684), id. at 261. After 1692 in several Province Acts, rejected by the Privy Council on various grounds, the common-law judges were given power to chancer penal bonds. See, for example, Act of 25 Nov. 1692, c. 33, §14, 1 A&R 75. Relief on penal bonds was accorded at law in England by 8 & 9 Will. 3, c. 11, §8 (1698). See Samuel Williston and George J. Thompson, A Treatise on the Law of Contracts, §§774, 775 (Boston, rev. edn., 1936).
4. Act of 10 Dec. 1698, c. 22, §§4, 5, 1 A&R 357, as amended by Act of 25 March 1713, c. 8, §2, 1 A&R 703.
5. For the present Massachusetts provisions, which carry forward without substantial change much of the Act of 1698, see Mass. G.L., c. 244, §§1–10, 18–36. Foreclosure may also be had by sale when the mortgage contains a power of sale. Id. at §§11–17C. The Massachusetts courts now have broad equitable powers, but the essentially equitable remedy given at law by these statutes is deemed adequate, except in unusual cases. See 1 Glenn, Mortgages 435. For the English practice of opening up a foreclosure for redemption, see id. at 403–405.
6. For the development of foreclosure by sale, See 1 Glenn, Mortgages 405–407, 460–467. The Massachusetts practice of sale under a power of sale in the mortgage, also utilized in England and elsewhere, achieves similar results. Id. at 433–434, 610–614. See note 5 above. As to the action on the bond after foreclosure, it was first held that since a mortgage was a pledge, the mortgagee had to be content with the land while he held it, but that if he sold it and it produced a deficiency he could proceed on his bond. Tooke v. Hartley, Dickens 785, 21 Eng. Rep. 476 (Ch. 1784). Later the position was reversed and an action on the bond permitted only before sale, on the theory that since the action opened the right to redeem, the mortgagee could bring it only if he was still capable of reconveying the premises to the redeeming mortgagor. Perry v. Barker, 8 Ves. Jun. 527, 32 Eng. Rep. 459 (Ch. 1803); Lockhart v. Hardy, 9 Beav. 349, 50 Eng. Rep. 378 (Ch. 1846); see Dashwood v. Blythway, 1 Eq. Cas. Abr. 317, 21 Eng. Rep. 1072 (1729). If there had been provision for the award of a surplus of the sale proceeds over the debt to the mortgagor, these problems need not have arisen. See John J. Powell, A Treatise on the Law of Mortgages, 2:1001–1006 (London, 6th edn., T. Coventry, 1826). Even without such a provision, they did not arise in Massachusetts. See note 15 below.
7. For the facts, see Doc. II and SF 100777. The lot, on the northerly side of Milk Street, and bounded by lands belonging to Andrew Oliver Jr. and Joseph Dowse, measured about 63 × 128 × 48 × 138 feet. Ibid. Brown's foreclosure action is in Min. Bk., Inf. Ct. Suffolk, Oct. 1757, No. 44. No files have been located. The fire of 20 March 1760 destroyed 349 houses and other buildings in the area bounded by the present Washington, State, and Milk streets, and the waterfront (Commercial Street), extending along the latter to the South Battery, near the corner of present Broad Street and Atlantic Avenue. No lives were lost, but damage was estimated at £100,000 sterling. Drake, History and Antiquities of Boston 649–653. As to compensation for the sufferers, see note 213 below. For the consequences of a later fire, see No. 33.
8. For authorities on the assignability of choses in action, see notes 232, 243, below. The bond and Inferior Court judgment are in SF 100777. The reasons for Brown's proceeding on Minot's bond, rather than on his own, are not known but may include the following: Brown had entered under the judgment on his own mortgage in Dec. 1757, so that the process of foreclosure was complete in Dec. 1760, before he had brought suit. If the English theory which deemed recovery on the bond tantamount to redemption (see note 6 above) were observed in Massachusetts he may have feared that, since under the local statute redemption was absolutely barred, he would not now be allowed to recover on the bond. Further, even if the court had permitted such a recovery, it might also have permitted redemption, and Brown, for reasons unconnected with the land's present market value, may have wished to retain possession. Even if the court had denied redemption because the land was worth less than the debt, it might have allowed Prout to set off the value of the foreclosure in “chancery,” limiting Brown's total recovery to the face value of his bond. A suit on Minot's bond was not subject to these drawbacks. Although Brown, being already in possession, could be said to have “entered” peaceably under Minot's mortgage on the day he took the assignment, this entry would not ripen into a foreclosure until Dec. 1761. Since the right to redeem was still open, there was no bar to recovery. Redemption was not a danger, however, because Brown as junior mortgagee could effectively block it on the grounds that the mortgagor was primarily liable for the debt to the first mortgagee and thus had a duty to save the land harmless (see note 13 below). Finally, since the foreclosure was not yet ripe, there was no recovery that could be set off against this bond.
9. SCJ Rec. 1766, fol. 78; Min. Bk. 79, SCJ Suffolk, Aug. 1762, N–8; SF 100777. The 1762 argument and pleadings are reported sub nom. Minot v. Prout, Quincy, Reports 9. Compare Burnell v. Martin, 2 Doug. 417, 99 Eng. Rep. 268 (K.B. 1780). As to the negative pregnant, see Stephen, Pleading 381–384; No. 9. For the rule that on demurrer the court will look to the whole record, see Stephen, Pleading 162–164.
10. SCJ Rec. 1766, fol. 78; Min. Bk. 81, SCJ Suffolk, Aug. 1766, C–1. For the computation of interest, see the bond in SF 100777.
11. Brown v. Lapham, 3 Cush. (Mass.) 551 (1849). For earlier American cases basing merger on the purchaser's duty, see Tice v. Annin, 2 Johns. Ch. (N.Y.) 125 (1816); Eaton v. George, 2 N.H. 300 (1820). These cases cite no authority. They are in effect a particular application of the interest theory, since if the purchaser has a duty to redeem, equity would not recognize as valid a contrary interest in pursuing the mortgage. See Gibson v. Crehore, 3 Pick. (Mass.) 475 (1826); Gardner v. Astor, 3 Johns. Ch. (N.Y.) 53 (1817); compare Bassett v. Mason, 18 Conn. 131 (1846). The latter cases, which are based on interest, rely on English authority espousing the general equitable doctrine that where the holder of any equitable charge on an estate acquires the legal title, there will be a merger, unless the party has a valid interest in preserving the equitable title, usually for protection against intervening interests. See Forbes v. Moffatt, 18 Ves. Jun. 384, 390, 34 Eng. Rep. 362, 364 (Ch. 1811); Powell v. Morgan, 2 Vern. 90, 23 Eng. Rep. 668 (Ch. 1688); Thomas v. Kemeys, 2 Vern. 348, 352, 354, 23 Eng. Rep. 821, 822–823 (Ch. 1697); compare 15 Viner, Abridgment 369.
12. See 2 Glenn, Mortgages 1159–1160; George E. Osborne, Handbook on the Law of Mortgages 770–771 (St. Paul, 1951); Tice v. Annin, 2 Johns. Ch. (N.Y.) 125 (1816); Lydon v. Campbell, 198 Mass. 29 (1908). Compare Darcy v. Hall, 1 Vern. 49, 23 Eng. Rep. 302 (Ch. 1682).
13. Although few cases in point have been found, modern authorities agree that a second mortgagee can insist that, as between himself and the mortgagor, the latter rather than the land shall bear primary liability for the mortgage debt, on the theory that the second mortgagee has received no reduction as consideration for the prior encumbrance. See A. James Casner, ed., American Law of Property, vol. 4, §16.127 (Boston, 1952); Osborne, Mortgages 697; Herbert T. Tiffany, The Law of Real Property, 5:371 (Chicago, 3d edn., 1939); Glenn, “Purchasing Subject to Mortgage. First Phase: Mortgagor's Rights Against Grantee,” 27 Va. L. Rev. 853, 855 (1941). Compare Samuel Carter, Lex Vadiorum 100–103 (London, 2d edn., 1728). In holding that even where a second mortgagee had assumed the senior mortgage debt by express agreement, the senior mortgagee could not join him as defendant in a deficiency suit, the Court of Appeals of New York stated as a general proposition underlying this result that “Where a party, taking from his debtor a lien on property subject to prior liens, assumes and pays them off, he is certainly entitled to add the amounts so paid to his original debt; the payments, though made in pursuance of his agreement, are made for the benefit of the debtor, and upon his debts, and to protect him and his property.” Garnsey v. Rogers, 47 N.Y. 233, 240 (1872). In Bassett v. Mason, 18 Conn. 131 (1846), however, the court held the mortgagor entitled to an injunction barring a junior mortgagee who had foreclosed his own mortgage and then had bought in two prior encumbrances from suing on the note secured by the first mortgage. This result may be reconcilable with Prout. Although the Connecticut court seems to have assumed that the land was worth less than the face value of the encumbrances, the amounts which the mortgagee actually paid for them do not appear and may well have been less than the land value. If the cases are not reconcilable, Prout is more consistent with the general principles of strict foreclosure. In Bassett the court seems to have based its conclusion that the land was the primary fund for payment of the debt upon New York cases, cited by counsel, in which the junior encumbrancer had acquired his title by buying in at his own foreclosure sale, rather than through entry and foreclosure. 18 Conn. 131, at 134, 137. See Cox v. Wheeler, 7 Paige 248 (N.Y. Ch. 1838); McKinstry v. Curtis, 10 Paige 503 (N.Y. Ch. 1844). A similar result has been reached in a modern view, on the theory that by virtue of the conditions of sale the junior encumbrancer in such a situation is like any other purchaser and so agrees that the land will be primarily liable. See Osborne, Mortgages 768–769. Compare text at note 12 above.
14. In Bassett v. Mason, note 13 above, the court indicated that it would have found no merger if the value of the land had been less than the note sued upon.
15. See Amory v. Fairbanks, 3 Mass. 562 (1793); Coit v. Fitch, 1 Kirby (Conn.) 254 (Super. Ct. 1787); 1 Glenn, Mortgages 436–437. Since 1836, a Massachusetts statute has provided that if the mortgagee recovers on a deficiency after foreclosure, the right to redeem is reopened for a year. Mass. G.L., c. 244, §35. Later construction of this Act indicates that it created a right not previously known at common law. Fennyery v. Ransom, 170 Mass. 303, 49 N.E. 620 (1898). It has not given rise to the difficulties about deficiency suits found in England. See note 6 above; compare Ely v. Ely, 6 Gray (Mass.) 439 (1856). By Act of 1818, now Mass. G.L., c. 244, §36, it was provided that a mortgagor could recover a surplus in an action at law. Presumably at common law any surplus was a windfall to the mortgagee. Thus, the mortgagor could not ordinarily open the foreclosure merely because of a surplus. See John J. Powell, Mortgages 457–461 (London, 1st edn., 1785).
16. As to the right of the assignee to interest, see Darcy v. Hall, 1 Vern. 49, 23 Eng. Rep. 302 (Ch. 1682); compare 1 Glenn, Mortgages 542–544. The sum might have been increased by a rule that interest paid by the assignee to the mortgagee could be asserted as principal (and so itself subject to interest) against the mortgagor. Under the English rule this could not be done without the consent of the mortgagor, but it was done without consent in a later Massachusetts case. See Swinerton v. Fuller, 4 Dane, Abridgment 185 (SJC Essex, 1792); compare id. at 176; Carter, Lex Vadiorum 108–110.
17. By the Massachusetts Act of 1698, note 4 above, the mortgagee was required to account for rents and profits on redemption. It has been assumed that the successor of this statute, Mass. G.L., c. 244, §20, is equally applicable in a suit on a deficiency. See Hadley Falls Trust Co. v. United States, 22 F. Supp. 346, 352 (D. Mass. 1938), reversed on other grounds, 110 F. 2d 887 (1st Cir. 1940).
18. The Massachusetts courts have held that foreclosure is not complete until the three-year redemption period has run, and have stated that the value of the land for purposes of deficiency is to be taken as of that time, West v. Chamberlin, 8 Pick. (Mass.) 336 (1829); McLaughlin v. Cosgrove, 99 Mass. 4 (1868); Morse v. Merritt, 110 Mass. 458 (1872). In one early case, however, in which a barn on the mortgaged property was destroyed after entry, although in determining a deficiency the property was appraised after the time for redemption had run, the value of the barn was included in the appraisal. Amory v. Fairbanks, 3 Mass. 562 (1793); SF 106460.

Docno: ADMS-05-01-02-0006-0001-0002

Author: Prout, Timothy
Date: 1763-02

Prout's “Bill in Chancery”1

Suffolk Superior Court, Boston, February 1763
Province of the Massachusetts bayMinot v. Prout Bill in ChanceryTo the honble. his Majesty's justices of the Superior Court of judicature &ca. to be holden at Boston within and for the county of Suffolk on the third tuesday of February A.D. 1763
Humbly petitioning showeth Timothy Prout of Scarborough in the county of Cumberland Esqr.
1. That well and true it is that the said Timothy on the said tenth of December A.D. 1753 became bound unto the said Christopher Minot in the sum of two hundred pounds lawfull money of this province conditioned to pay the sum of one hundred pounds like money with lawfull interest on or before the tenth of December A.D. 1754. And the said Timothy as a collateral security to the said Christopher for payment of the same sum and interest by deed of mortgage bearing date the said tenth of December A.D. 1753 conveying to the said Christopher a certain messuage in Milk Street in Boston aforesaid bounded as in the same deed recorded in the registry of deeds in the said county of Suffolk copy whereof duly attested your orator hath ready to exhibit to hold to him the said Christopher and his heirs if the said sum of one hundred pounds and interest should not be paid.
2. That afterwards your orator upon the first of October A.D. 1755 became bound unto one William Brown of Beverly in the county of Essex Esqr. in a penal sum conditioned for the payment of the sum of one hundred and eighty four pounds lawfull money and interest on or before the first of October A.D. 1756 and more fully to secure to the said William the payment of the Same sum and interest according to the tenor of the same condition your said orator on the day of the date of the last mentioned bond and collateral thereto executed a deed of Mortgage to the same messuage and land which had before been mortgaged to the said Christopher to him the said William and in the same Mortgage expressly mentioned the said former mortgage made to the said Christopher as by a copy of the said mortgage made to the said William which the said Timothy hath ready to exhibit to this honorable court may appear.
{ 240 }
3. That afterwards the said William Brown put in suit the mortgage made by your orator to him as aforesaid and at the inferior court of common pleas held at Boston aforesaid on the first Tuesday of October A.D. 1757 recovered judgment for possession of the said mortgaged premises and cost of court taxed at three pounds fifteen shillings and five pence unless the said Timothy should pay the sum of two hundred and seven pounds lawfull money within two months from the rendring of the same judgment and the same sum not being paid the said William soon after the expiration of the said two months actually entred into the said mortgaged premises and became seised thereof in his demesne as of fee and hath ever since held and possessed the same and still does so and the cost aforesaid was paid by your orators attorney.
4. And your said orator further humbly suggests to your honors that the said William after he had actually entred into the said mortgaged premises as aforesaid the better to strengthen his title thereto he on the thirteenth of December A.D. 1758 purchased of the said Christopher the prior mortgage aforesaid and at the same time the obligation now sued on both which were in reality for one and the same debt and the said Christopher assigned them both to the said William.
5. And your said orator doth in fact affirm allege and say and is ready to prove that the said mortgaged premises were worth on the same thirteenth of December much more than the sums equitably due on both the mortgages aforesaid, that the said William reserving good part thereof in his own care rented the residue for twenty pounds a year lawfull money and the same William held himself well content with the said mortgaged premises in satisfaction of the same debts.
6.2 Further after that on the twentieth of March A.D. 1760 the dwelling house on the said mortgag'd premises was burnt down the said William estimated his loss thereby at the sum of two hundred pounds lawfull money and actually made a claim to the committee for distributing the charitable contributions made for the sufferers by the said fire to be considered as suffering so much loss.3—That the said William sold the bricks in the ruins for six pounds lawfull money and the loft and land are worth at least the sum of one hundred and thirty three pounds six shillings and eight pence more.
{ 241 }
7. And now after the said mortgage recovered on by the said William in his own name hath become irredeemable, and that the fire hath consumed the said house he the said William pursueth your orator in the name of the said Christopher on the said obligation given to the said Christopher and would compell the Entire payment of the same [notwithstanding]that he hath in manner aforesaid received full satisfaction therefor contrary to equity and good conscience.
And all these things your orator is ready to prove when your honors shall appoint wherefore in as much this suit is manifestly litigious your orator prayeth that the penalty of the said obligation which your honors on the pleadings in law have adjudged to be forfeited may be chancered down to the sum of one penny and that your orator's reasonable cost may be decreed him.
[signed] Tim. Prout Attorney to Tim. Prout Esqr.
[signed] Att. Nat. Hatch Cler.
1. In an unidentified hand, signed and attested as shown in text. The paragraph numbers appear in the margin of the MS. SF 100777.
2. In the margin: “Quere.”
3. As to the fire, see note 7 above. A fund made up of sums appropriated by the General Court and donated by other provinces and private persons was given to the Selectmen and Overseers of the Poor for distribution among those who had suffered losses. See Drake, History and Antiquities of Boston 651–652.

Docno: ADMS-05-01-02-0006-0001-0003

Author: Adams, John
Date: 1766-08

Adams' Minutes of the Argument1

Suffolk Superior Court, Boston, August 1766
Prout vs. Minot.
2 Vernon 539. 540. Payment to Obligee, after Notice of an Assignment is not good. The Assignee alone is entituled to the Money.2
Choses in Action are assignable in Equity, 'tho not in Law.
Jones's Reps. Page 223. 223. Lewis vs. Wallis.3
Tho the Action must be in the Name of Assignor, yet it is considered in Equity and even in Law, as the Property of the assignee.
The real Interest in the present Case is in Brown.
{ 242 }
Gridley. Seem'd to conceed.
Judge Lynde. The Court has determin'd that if the Land mortgaged is insufficient to pay the Debt, mortgagee may have recourse to his Bond, and may sue both, i.e. Bond and Mortgage.4
1753, Bond and Mortgage was given to Minot.
1755, Bond and Mortgage of the same Land was given to Brown.
After, Brown sued his Mortgage had Judgment and enterd on Possession and
After, Minots Mortgage was assignd to Brown.5
The great Fire in March 1760, burning the House occasiond this Dispute.
1. In JA's hand. Adams Papers, Microfilms, Reel No. 185.
2. Baldwin v. Billingsley, 2 Vern. 539, 23 Eng. Rep. 950 (Ch. 1705). Baldwin had borrowed £200 from a trust, giving the trustees a bond in that amount which recited the trust. The bond was delivered to Mrs. Billingsley, the beneficiary. Baldwin paid £100 to one of the trustees who gave him a receipt in the name of the trust, then absconded. The Lord Keeper ruled for Mrs. Billingsley, saying, id. at 540, “Mr. Baldwin ought to have been cautious how he paid the Money; it being in Equity the Money of Billingsley, as much as if the Bond had been assigned to her; and Payment to the Obligee after Notice of an Assignment is not good: In the Case of an Assignment of a Bond the Assignee alone becomes intitled to receive the Money.”
3. Lewis v. Wallis, T. Jones 222, 223, 84 Eng. Rep. 1228 (K.B. 1683), held that attachment in an action of debt did not lie against an asset assigned by the debtor to a third party.
4. That is, the earlier decision of the court on this point at the Aug. 1762 term of the Superior Court. See text and note 9 above.
5. Commas supplied in this and the preceding three paragraphs for clarity.

Docno: ADMS-05-01-02-0006-0002-0001

Editorial Note

This case and Nos. 18–2118–19 and 20–21 reflect some of the legal problems arising from the dependence of the New England economy on running water as a source of industrial power. They fall into two categories: defendant either blocked a running stream entirely or so diverted the flow as to diminish the amount available to plaintiff; or defendant caused the stream to overflow plaintiff's land. Plaintiffs in both sorts of cases had first to prove a right to the water, the land, or, sometimes, both. Some of the Adams minutes are thus largely concerned with chain-of-title evidence. And, as in most provincial litigation, technical points of pleading were usually never far from the surface.
Like Wilkins v. Fuller, No. 20, the instant litigation arose from the flooding of plaintiff's meadow by back water from defendant's dam, this one being across Pudding Brook in Pembroke. Here, however, there was no pleading issue to delay the proceedings. The action was entered at the Plymouth Inferior Court in March 1768,1 and was continued to July 1768 where, after a jury view of the land in question, Adams won a “Verdict for Defts.” with costs, and a fee of 28s.2 We have no Adams minutes of the Inferior Court trial, but Robert Treat Paine's notes include { 243 } the former's argument (Document I). Adams' own minutes (Document II) date from the Plymouth Superior Court, May 1769, where once again his clients won.3
1. The writ is endorsed “Otis,” SF 142297, although Paine seems to have tried the action. A note on JA's list of cases for this term reads: “I have promised to be for Defts. Reed. 12s, Reed. 22s. Continued.” JA, Docket, Adams Papers. Counsel of record in the SCJ were Paine and Otis for plaintiff, JA and Leonard for defendant. Min. Bk. 82, SCJ Plymouth, May 1769, N–2. See also Clark v. McCarney, p. 68 above.
2. JA, Docket, Adams Papers.
3. SF 142297; Min. Bk. 82, SCJ Plymouth, May 1769, N–2; SCJ Rec. 1769, fol. 183. Costs were £13 8s. 10d.

Docno: ADMS-05-01-02-0006-0002-0002

Author: Paine, Robert Treat
Date: 1768-07

Paine's Minutes of the Trial1

Plymouth Inferior Court, July 1768
Mr. Adams. The grass was good till it was pastured and the bushes grew up; if the mill had not been built, his neglect would have filld up the natural Course and spoil'd the Meadow.
Why did not he bring his action in the time of it?2
He has no damages for what he bought 5 years ago.3
The fall of water. I knew a meadow. [ . . . ] Duke of Bridgwater's Cannel.4
2. The writ alleged the flooding to have commenced five years prior to 24 March 1768 (the date of the writ) and to have continued until that date. The applicable statute of limitations was five years. Act of 7 July 1740, 2 A&R 1020. Compare No. 20.
3. Last two words unclear in MS.
4. Francis Egerton, 3d Duke of Bridgwater (1736–1806), commissioned James Brindley (1716–1772) to construct a canal from Worsley to Manchester. The canal was one of the major engineering achievements of the century.

Docno: ADMS-05-01-02-0006-0002-0003

Author: Adams, John
Date: 1769-05

Adams' Minutes of the Trial1

Plymouth Superior Court, May 1769
Keen vs. Turner.
Keens Witnesses.
Ed. Thomas. Known Georges Meadow 30 Years. Carted the Grass 2 Years. It was a very good Piece of fresh Meadow. I went in with a full Team without miring. Last August I saw it. The Meadow very much altered. The Meadow wet. Ditching and clearing the Brook could not wholly prevent the Damage.
Wm. Cox. Deposition. Vid.2
Elisha Barker. Both Sides lay open to a Pasture 7 Years. Sold it since the Mill was built.3 Liable to great freshets.4 All a Pond. My { 244 } father who owned the Meadow consented to sett up this Mill. Mills 100 Years. Drand off 10. Apl.
Saml. Tayler. 1764, 5, 6. I got the Hay. One Year it Spoilt the Hay. I understood that Turner said he would stop his Mill one day. But at Night let it go.
Amos Witherel. Subject to freshits, the Water grows the Weeds. I cant tell whether, occasiond by the Mill.
Wm. Hetherd. Ditto.
Mr. Soper. Brook worn away. Meadow much damaged by the Water, coming repeatedly upon it.
Eliazer Hamlen. Boggy Land, bad fodder. Mill set agoing and I saw the Channell fill, and overflow the Meadow. Water has not so good a passage as it might have. Must dig lower than the Bottom of the Brook.
James Cox. The Brook not filled by the natural Stream.
Isaac Keen. Deposition. Vid.5
Fra. Keen. Deposition. Vid.6
Leonard. Our Witnesses. An unfavourable Case.
Coll. Turner. 1738, 9, 40, 41. I hird it. I was told I must be carefull and watch my Time. Once I went after a Rain and my Cocks7 were half leg deep in Water. It is rather wetter, than it was when I cutt it. It was miry from End to End. A great deal more Grass now { 245 } than when I had it. Next the Brook as good. The rest not. The Brook might be easily cleared so as to convey all the Water off.
Aaron Sole. Of Opinion the Meadow is betterd by the flow. I have some Meadow that grows worse without overflowing. The Saw Mill went Winter and summer many Years.
Barker. Very full. The flow an Advantage. Ton to an acre last Year, glad to cutt by Halves.
Mr. Hatch. Viewed it, and the Brook. My opinion that the Brook cleard out and Meadow ditched, the flow would be a great Advantage. Offer to clear it out. Answerd that would not Answer any Purpose. 2 Men in a day would clear the Brook, and by stopping a few Places in the Banck, one Rod would not be flowed.
Seth Briggs. Logs across the River, almost buried in sand. A bridge about 30 Years, furrd8 with Sand, so that Weeds grow quite across the Brook. A good Crop last Year and good Grass. 4 foot fall, in 40 Rod.
Barnab. Briggs. Juror.9
David McGoon. Offered to help clear the Brook.
Jno. Chapman Jnr.
Mr. Palmer. Such Meadows generally as good again for the water.
Jno. Turner Jnr. 5. Bushells in 24 Hours.
1. In JA's hand. Adams Papers, Microfilms, Reel No. 185.
2. This deposition is not in the file. “I hired it 2 or 3 yr. ago. 20 or 30 yr. ago. Good crops and good grass next to English.” Paine Law Notes.
3. On the significance of this evidence, see 2 Blackstone, Commentaries *403: “If a stream be unoccupied, I may erect a mill thereon, and detain the water; yet not so as to injure my neighbor's prior mill, or his meadow: for he hath by the first occupancy acquired a property in the current.” Blackstone may not have accurately stated the English law. 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).
4. Sudden flooding, as from rain or melting snow.
“Isaac Keen of full age testifieth and saith that I have been well acquainted with a certain piece of meadow called by the name of George's meadow, lying upon a brook called Pudding Brook, and a little below the grist-mill called Turner's mill and have been acquainted with said meadow this forty odd years past, and have mowed in the meadow for a great many years past, and then the meadow was hard enough to go in with a cart, and the grass very good, a large burden and very good fodder, and never knew any failure till since the abovesaid grist-mill was set up, and since that I have been across it very often, and I look upon the meadow is much damaged by reason of the above said mill being there, which occasions the meadow to be much overflowed, and very difficult working in it, it being to miery, and the hay that is cut of but very little value, and further saith that the bank of the meadow very much broke away by reason of said stream. Isaac Keen. Sworn to in open court.” SF 142297.
6. This deposition, which substantially duplicates that of Isaac Keen, was also sworn to in open court. SF 142297.
7. Hayricks.
8. “Fur.” “3. To coat or cover with fur or morbid matter. To fur up: to stop up or 'clog' with this.” OED.
9. “A Juror who is a Witness, must be also sworn in open Court to give Evidence, if he be called for a Witness; for the Court and Council are to hear the Evidence as well as the Jury.” 2 Duncombe, Trials Per Pais 384. See No. 12, notes 90–9220, 21, and 22.

Docno: ADMS-05-01-02-0006-0003-0001

Editorial Note

The litigation arising from Samuel Clap's will is illustrative of two very important features of the Massachusetts system of distributing decedents' estates: the necessity that wills be executed under conditions of capacity and formality similar to those required in English law; the interaction and conflict between the Province probate court system and the courts of common law in dealing with contested wills.
Clap, a resident of Scituate in Plymouth County, died on 8 December 1766. On 25 October of that year he had made a new will in order to disinherit his eldest living son, William, whom he accused of a variety of unfilial acts. After a life estate to his wife and a token for William, he left the bulk of his realty to another son, Samuel Jr., and the rest of it to his { 246 } grandson, Samuel Randall, at age 21. Clap's daughter, Sarah Randall, was to receive certain household goods, and there were small cash legacies to Sarah's daughters, as well as to Michael Clap, another grandson, whose father had predeceased the testator. Samuel Clap Jr. and Sarah Randall were nominated as executors and were bequeathed all of the testator's bonds and notes under a direction to pay debts, legacies, and funeral expenses.1
In April 1767, before Plymouth County Probate Judge John Cushing, William Clap attacked the will, and it was disallowed. Samuel Clap Jr. appealed in August to the Governor and Council sitting as the Supreme Court of Probate. There, Commissioners appointed for that purpose proceeded to administer interrogatories and take depositions in February 1768.2 At the end of that month a hearing was held in which Adams argued for the will and Robert Auchmuty opposed it. Adams' notes for his own address and his minutes of Auchmuty's argument, which are printed below, show that there were two lines of attack. Clap's testamentary capacity was called in question by a series of witnesses who reported that he had not been himself for the last year of his life, and that on at least two occasions he had given vent to expressions indicative of an unsound mind. Certain unusual features of the will itself were also pointed to as indicative of lack of capacity. In addition, Auchmuty argued that the will was invalid for noncompliance with the formalities of execution. The will was in writing and signed by the testator and three witnesses, as required by the Statute of Frauds, but it was written on several sheets stitched together in a “paper book,” and Clap had left numerous blank pages, which he allegedly planned to fill in later.3 Auchmuty thus con• { 247 } tended that the will offered in probate could not positively be identified as the will attested by the witnesses.
Adams seems to have concentrated his argument on the question of capacity. His review of the depositions is a witty and effective resolution of conflicting testimony in favor of Clap's sanity. His notes also show that he cited authority indicating that only the literal requirements of the Statute of Frauds need be adhered to, and that, the Statute aside, a will such as this one was good. His arguments were apparently convincing. On 2 March 1768 the court ordered that the decree of the probate judge should be reversed and so upheld the will.4 Clap's heirs were not yet out of difficulty, however. The will was soon to be tested at law in the action of Clap v. Randall, No. 16.
1. For the will, see Supreme Ct. Probate Rec. 1760–1830, p. 57–60. The devises to William and the testator's wife are set out in notes 1410 and 1511 below. The date of Clap's death appears in the writ in Clap v. Randall, SF 142299. See No. 16, note 3.
2. See Supreme Ct. Probate Rec. 1760–1830, p. 57–61; SF 129912. In the files one Benjamin Jacob appears as “appellee” in the subscription of two depositions taken at Samuel Clap's request. Ibid. Jacob has not been further identified but may have been a representative of William Clap at the taking of the depositions. Interrogatories were a civil law practice, perhaps adopted on the recommendation of Governor Thomas Pownall, who reorganized the court in 1760. See his Message to the Council, Quincy, Reports (Appendix) 572–579. As to the probate system generally, see p. xliv above; No. 16, note 1.
3. As to the Statute of Frauds, see No. 16, note 127. The blank pages are noted in the copy of the will in Supreme Ct. Probate Rec. 1760–1830, p. 57–60. See testimony of Joshua Jacob, SF 129912, and Thomas Clap, SF 142299; No. 16, note 94. The execution of the will is described in
“The deposition of Elisha Barrel relating to a paper Book purporting [to be] the will of Samuel Clap Lat of Scituate in the County of Plymouth yoman decesd dated October 25 ad 1766, taken upon interrogatories as follows viz. Question. Did you see the said Samuel sine and seal the Last written Leaf of said book and hear him Declare the same to be his Last will and testament. Answer. Yes. Question. Did you with David Jacob and Ja[mes] Jacob subscribe as witness thereto at the same time in his presence, and was he then of sound mind. Answer. Yes as I apprehended. Question. Did you obsarve any blank or clean unwritten leavs in said paper book when you set your hand as a witness there to. Answer. I did not obsarve it. Question. Were all the Leavs stiched to gether as they now are when you signed as a witness as aforesaid. Answer. The book appeared in the same shape as it does now, but whether there was so many leaves I cannot say. Question. Was what now appears in the several leaves of said book wrote before you subscribed as a witness. Answer. I am not abel to say.” Dated 19 Feb. 1768. SF 129912.
4. Supreme Ct. Probate Rec. 1760–1830, p. 61. For Adams' authorities, see note 1317 below. They are further discussed in No. 16, note 72.

Docno: ADMS-05-01-02-0006-0003-0002

Author: Adams, John
Date: 1758-02

Adams' Address and Minutes of the Argument1

Supreme Court of Probate, February 1768
Samuel Clap Testator, left2 a Grandson Michael Clap, Son of the Eldest Son of the Testator, whose Name was Michael Clap, deceased.
<William Clap, the oldest Son Living dis>
Sarah Randall Widow of Samuel Randal deceased who left by her, four Children, 2 Sons and 2 Daughters, the Names Samuel, Mary, Sarah and Elijah.
William Clap the Eldest son living. Disinherited.
Samuel Clap, the Executor, and principal Legatee. Mrs. Randall Ex[ecutri]x too.
The Testator in his Life time, had allowed large Priviledges to his eldest son Michael in his Life time, whereby he had acquired a pretty Estate of his own, and young Michael being young but six or seven Years old, might die and then whatever he might have would go to his Mother, entirely out of the Family and Name of Clap.
{ 248 }
Samuel Clap's Will.
Evidence vs. the Will
Joseph Jacob. Testifies that he looked upon him, for several Years before his Death, not to be a Man of a sound Mind. But Jacob gives no Reason, relates no Fact on which to ground his Opinion. Informs the Court of no Action nor Expression of the deceased, to satisfy the Court that his Opinion was just—excepting the Will itself. He refers you to the Will to prove him mad. But I say his Referring you to the Will as Proof of Insanity, is a much stronger proof of his own, for the Will itself is a sensible wise and judicious one. Will cant be proof of Insanity for years before it was made.
Bezaliel Curtis. Did not look upon him for some time, before he made his Will, to be in such a Frame of Mind, as a Man ought to be in when he makes his Will. This is mere Opinion, Judgment, Conjecture again, without any Word or Deed to support it. Besides no Man can tell this Witness's meaning by Frame of Mind. He does not tell Us what Frame of Mind a Man ought to be in <when he> in his Judgment and Opinion when he makes his Will. He does [i.e. does not] say that he ever heard him speak a silly or an idle Word, or do a wild or inconsiderate Action. He dont so much as say that he ever perceivd him Unsound in his Mind, deficient in his Memory or weak in his Understanding, but not in a suitable Frame of Mind to make a Will. And I suppose his Meaning was really this. This Word Frame is a technical Term among the Visionaries and Enthusiasts in the Country and signifies the moral and religious state of the soul, rather than the Conduct of the Understanding, the Government of the Passions and Appetites, rather than the command of the intellectual Faculties.3 So I suppose Mr. Curtis thought that the [testator] { 249 } Clap was not meek and patient and humble and devout enough, but was too peevish and passionate for so solemn an Action. But the Law makes no Enquiry about the Frame of his soul, and the vilest Sinner living has as good a Right in Law to make a Will and may be as capable of it as the most emminent saint in the Calender.
Zecharias Daman is the next Witness and he testifies, he was intimately acquainted with Saml. Clap for many Years, and that for about a Year before his Death, it appeared to him he was not in a sound Mind, nor capable of disposing of his Estate by Will. That he found visible and material Alterations in him from what he formerly was, and that he perceived these Alterations and this Unfitness to make a Will, at 4 or 5 Conversations he had with him, within about 2 months before he died.
This Testimony is like the two former. The Deponent barely gives his Opinion, not founded on any facts, Words, or particular Observations, not that the Testator was unsound <Non Compos, delirious, lunatic, &c. but that he was> unfit to make a Will, and incapable of disposing of his Estate by Will. The Deponent indeed informs us that he always made use of odd Expressions in all his Discourse, ever since he knew him.
Anna Cothrel testifies, that she was well acquainted with Samuel Clap, and always for many Years, looked upon him of sufficient Understanding to dispose of his Estate, till the June before he died, when I looked upon him in a Case tending to Distraction. Some Weeks before his Death, I perswaded him to come in but I could not get any other Words from him, than these God blast the Corn, which he often repeated.
This Witness has come to particulars. Has sworn to one Expression tending to convince the Court, of Claps Insanity. But before I consider that Expression I should Observe that she differs widely totally from one of the former Witnesses Dr. Joseph Jacob in her general Opinion of him. Dr. Jacob swears that for several Years before his Death, he looked upon him not to be a Man of a sound Mind. She Anna Cothrell swears that she was acquainted with him for many Years, and always looked upon him of sufficient Understanding to dispose of his Estate till June before he died. Here is a Difference in Opinion which I shall leave them to reconcile. She is willing to allow him his Reason till June before he died, Jacob strips it all away from { 250 } him for several Years before, ay and all for the small offence of making a wise, sensible tho an odd Will. Anna Cothrell in June looked upon him in a Case tending to Distraction, I was mistaken I thought she gave her Opinion that he was distracted, but she does not go so far, she only says tending to distraction. I must own I like this Witness better than Jo. Jacob. He deals in Distraction by wholesale and inferrs several Years of it, from one sensible Will. She only infers a Tendency to Distraction from a strange Expression, and that is God blast the Corn. This as it stands in her Deposition is a strange Expression. One knows not what to make of it. But it is so loosely and uncertainly related to us by her that we can conclude nothing from it with Safety. She says it was some Weeks before his Death—how many is uncertain. I am told that before the Commissioners4 she said Three. But this is impossible, as we shall shew presently. But the Time is not ascertaind when these Words were spoken. Nor is there any one Circumstance that accompanied them related. We are not told what went before or after, We know not what he was doing whether he was on Horseback or a foot, whether looking on the Cornfields or contemplating the Heavens. If these Circumstances were known we might perhaps see that the Words were sensible. He might be a looking towards a Cornfield and see young Ears of it blasted. And he might say to some body or to himself that God blasts the Corn. I say to himself, because many a sensible Man is frequently found talking to himself alone. So that no Inference of Insanity can be drawn from his talking with himself, nor are the Words insensible. Blasts are a Part of the Constitution and Course of Nature, the whole of which is under the Providence of God, and he may be said to blast the Corn as well as to send Rain on the just and unjust.
There is but one Deposition more against the Will and that is of
James Lambard, who was intimate with Clap 35 Years. Several Years before his Death he was not as rational as usual, particularly the last Year, when he was not of a sound And disposing Mind because he knew him to be out one morning and cry out, with a loud Voice I am King I am King and at another Time I heard him cry Murder Murder no Body near him as he saw and he at 80 Rods Distance, both in the High Way.
This Mr. James Lambard, your H[onor]s will remember is the Grandfather of Michael Clap, a Child of 7 Years old, who is the Representative of his father, who was the Eldest son of the Testator, { 251 } so that necessary Allowances will be made for the Affection of a father to his Child and fatherless Grandchild. For this Grandchild of his will be intituled to a double share in the Estate if the Will is disapproved.5 Mr. Lambard differs from all the other Witnesses in one Particular and agrees with Jos. Jacobs that for several Years before his death he was not as rational as usual particularly the last Year, and that he was not of a sound mind, because he cryed I am King. In order to satisfy the Court about this odd Expression We shall presently read some Depositions to shew that This Rebellious son Wm. was often wrangling with his father and abusing him, and that the father used to say to him I am King yet in my own House and over my own Estate And will be obeyed. This son used to steal his fathers oxen and cutt his Timber, and sell it, which the old Gentleman thought was an Usurpation, and a taking by Violence, the Reigns6 of Empire from his Hands. The other Cry of Murder, if true, was owing I suppose to the same Cause, for his son used to strike and beat his father as well as steal and destroy his substance and it is most likely he had been beating of him when he ran out and cryed Murder.
Evidence for the Will.
John Jacob. We begin with his Barber who shavd him constantly for six Weeks before he died and saw nothing in his Conversation or Behaviour, but he had the free Use of his senses and Reason, as well as ever for 10 Years, and he thought him to be of a sound Mind, and all the Time thought it impossible he should go out, which shews the Probability and Incredibility of Anna Cothrells story, that she saw him a broad some Weeks before his death, and heard him say God blast the Corn. This Witness in 6 Weeks Attendance must have had Opportunity to observe his Wildnesses, if he had been wild. He swears he saw none.
James Cushing. Looked upon him a cunning subtle Man in Managing his Affairs the last Year of his Life, which he did with much Prudence and Discretion. Trouble in his family put him into a Passion, but when out of a Passion a reasonable Man, of a sound Mind and capable of disposing of his Estate.
David Kent. Took Care of his Cattle and got his Firewood for the Winter for his Victuals, lived with him till his Death, and always looked upon him capable of disposing of his Estate. Deceased told { 252 } Deponent that Wm. would undo him, that he stole his oxen and carted his Wood in the Night Time, to prevent which he ordered his Yokes to be locked up, and that he shoved him about House, and struck him and that he could not go out for 5 Weeks.
Israel Silvester. Acquainted 20 Years. Clap told him, that his son William had broke his Corn House open and stole his Corn. Hasp to keep him out. Told him he was going to alter his Will— that he had made two Wills. That this was the Third, that he was about to make and this the last. And that he determined to cut his son William <off> short, for he had behaved badly and had got enough out of his Estate. Visited him 4 or 5 days before death, and talked with him and did not find or perceive but that he was as reasonable as usual.7
Elisha Jacob. In June 1766 a Controversy between Saml. Clap and his son Wm. Was called in as a Witness. Clap appeared very rational, then and always. Said Wm. would not go off according to Promise, but took oxen and carted Wood, without Leave. Said He would be King Yet. Of sound Mind and Memory and capable of conducting his affairs and disposing of his Estate.8
{ 253 }
Here it seems that he was fond of the Expression that he would be <Master> King, which shews the Probability that I was right in my Conjecture about James Lambards Deposition. Lambard heard him say he would be King and no doubt there had been then a Dispute between Wm. and him and He said then as he said upon this occasion that he would be Master Yet.
Joshua Jacob Jnr. Acquainted 15 Year, conducted with Prudence, the last Year as well as ever, and that in his Opinion he was capable on mature Consideration of making a Will. And heard Wm. own he had struck his Father with as good a Will as he ever did a snake.
Desire Clap. Vizited him a Week before he died. Told her, he had not long to live, that he had made a new Will and cutt Wm. off or given him but a Trifle.9
Mr. Auchmuty.
Exhibit. 3 or 4 Reasons. Not sound Mind. Blanks liable to be filled. No Proof that Will the same.
Inconsistencies. Absurdities and Nonsense. Devise to Sarah his Wife, that I have not given belonging to.10
Wm. Clap, Chubbuch's11
3d Mod. 263. 3 Witnesses—one never saw this Will. Court if Witnesses saw the last Paper and never saw the first. Wm. & Mary.12
{ 254 }
Vid. Lex Testamentaria Page 529.13
1 Sid. Stephens vs. Gerard 315.14
5th Bacon 502.15 Godolphins Orphans Legacy Page 23. 24. 25.16
1. In JA's hand. Adams Papers, Microfilms, Reel No. 185.
2. These three words, and the headings and names of deponents printed in large and small capitals below, were written by JA in a hand much larger than that in the rest of the MS, perhaps as a device to call his attention to important points as he spoke.
3. For examples of “frame” used in this sense, see RPB: Diary of Isaac Backus, vol. 4, 20 July 1755: “One thing that has burden'd my Soul of late is having my mind and my hands too much cumberd with earthly things, So that I've greatly neglected private reading meditation and prayer. By reason of which I've often come before Gods people very unprepar'd both as to matter, and also as to a sutable frame of mind to treat with Souls about eternal Things.” Id., 21 July 1755: “I visited Sister Elizth. Show who has been sick this fortnight with the long fever, and she complain'd much of a confus'd and stupid frame of mind; but while I pray'd her Soul was bro't forth so that as soon as I had done she broke forth in the praises of the Lord, and did admire his great goodness to such a vile Backslider, O! said she 'I have found him whom my Soul Loveth.' And I left her in a sweet frame and went to see some others, and found Some engagement of mind to labour to stur up Souls to mind their Spiritual concerns.” For this and other similar references to the Backus Diary the editors are indebted to Professor William G. McLoughlin of Brown University. Professor McLoughlin points out that the term was in very general use among the pious. Letter to the editors, 16 Dec. 1963. See, for example, the following stanza of a Watts hymn, quoted in Backus, Diary, vol. 4, 27 June 1756: “My willing soul would stay,/In such a frame as this,/And sit and sing herself away/To everlasting Bliss.” See Isaac Watts, Hymns and Spiritual Songs 106 (Boston, 37th edn., 1774).
4. That is, the Commissioners to administer interrogatories and take depositions for the Supreme Court of Probate. See note 2 above.
5. See No. 16, note 3.
6. Thus in MS.
7. The deposition of Israel Silvester, taken for the Probate appeal at Samuel Clap's request on 18 Feb. 1768, was as follows:
“That I have been Well Acquainted with Samuel Clap Late of Scituate Deceased for About Twenty Years Passed and that Sometime In August AD 1766 According to the best of My Remembrance I Exchanged Some Rye with Said Clap for Indian Corn and at That Time he Told me that his Son William had broke his Corn House Open and had Stole his Corn and that he would Undo him and Desired me that I would make him a Good Strong hasp for he Said he had Got a Sufficient Lock to keep him out. I accordingly made him a hasp. Some time after this as I was Riding the Road with Said Samuel In Conversation with Said Samuel he Told me that he was Agoing to Alter his Will and that he had made Two Wills and that this Was the Third that he was about to make and He hoped this Would be the Last and that he Determined to Cut his Son William Short for he had behaved Badly and had already Got Enough out of his Estate. After this I heard that Said Clap was Very Poorly and Not Like to go Abroad again. I went to See him According to the best of My Remembrance about four or five days before his Death and talked with him and I did not find or perceive but that he was as Reasonable as usual.” SF 129912.
See William Clap v. Samuel Clap, SF 142364, Min. Bk. 82, SCJ Plymouth, May 1769, N–7, SCJ Rec. 1770, fol. 77, an action by the executor of the testator's estate on William's promise to deliver £60 worth of farm goods.
8. The deposition of Elisha Jacob, taken for the Probate appeal at Samuel Clap's request on 17 Feb. 1768, was as follows:
“Some time in June 1766 Theare was a Controversy Arose Between Samuel Clap Late of Scituate [Deceased?] and His Son William Clap and I Was Called in as an Evidence to Some of Their affairs and the said Samuel Appeared to be Very Rational at that and at other times Ever Since the Year 1750 and More Espesally the Latter Part of his Life as I Was More Entimately a Quainted With his affairs. He appeared The Mane [i.e. in the main?] Rational for He Said his Son William Would Not goe off according to agreement But Continued Theire and Took his oxen and Carted wood Without Leave. Said Samuel Said he Would Bee King yet and he Still Apered of Sound Mind and Memory By his Conducting of his affairs The Latter Part of his Life. For he Repaired his Buildings and fences Which he Said his Son William would Not Do. Furthermore I Looked upon him Capable of Disposing of His Estate as Ever I Knew him in all My Life.” SF 129912.
9. See Desire Clap's deposition, taken for use at the Superior Court in Clap v. Randall, No. 16. SF 142299.
10. Samuel Clap's will:
“I give to mi wife Sarah Clap for her support one half of my improved Lands and and one third part of the House I now Dewil in and also one third part of my quick Stock of Cattel and Sheep to improve for her suport, also I give one third part of all my Household Goods as long as she lives, and I also give to improve that part I have not given to my son Samuel Clap, and I also give my wife Two pounds a yearely as long as she lives if wanted and called for from them or Her who it belonging tow.” Supreme Ct. Probate Rec. 1760–1830, p. 57.
11. Samuel Clap's will:
“Item, I give to my son William Clap one part of a House and part of a Barn and one fourth of a acres of Land lying in Hingham lying at Thomas Chubbuck and if not disposed or Sold in my life time. If sold then I give my Son William Clap ten shillings in lawful money forever.” Supreme Ct. Probate Rec. 1760–1830, p. 57.
12. Lea v. Libb, 3 Mod. 262, 87 Eng. Rep. 173 (K.B. 1689), a case in which there were two witnesses to the will and two to a codicil, one of the latter having also been one of the witnesses to the will. It was asserted that the will was valid, there being three witnesses in all. The court held otherwise, stating, at 3 Mod. 263, 87 Eng. Rep. 174, that “If a Man make a Will in several Pieces of Paper, and there are three Witnesses to the last Paper, and none of them did ever see the first, this is not a good Will.” The last phrase noted by JA is an incomplete reference to the date of the case, given in the report as the first year of the reign of William and Mary.
13. This and the following citations were written by JA in a heavier hand similar to that in his address, suggesting that these are authorities for his position. The work cited here is William Nelson, Lex Testamentaria 529 (London, 2d edn., 1724), a passage setting out the Statute of Frauds, 29 Car. 2, c. 3, §6 (1677), (No. 16, note 127), as well as cases on the signing of wills to the effect that under the statute a will need not be signed at the end, and that before the statute unsigned wills could be valid in certain circumstances. One of the cases on the latter point is Stephens v. Gerrard, note 14note 18 below. JA's spelling, “Gerard,” which is that used in Lex Testamentaria, suggests that the latter work, rather than the report, was his source. See also No. 16, note 72.
14. Stephens v. Gerrard, 1 Sid. 315, 82 Eng. Rep. 1128 (K.B. 1666), was an action in ejectment in which “le title del defendant fuit le volunt [will] de Sir Edward Worsley ... et ceo volunt fuit escrite per un Bainham de Greys-Inn, et come il jure publy per luy mes ne fuit subscribe per Sir E. W. sed remain in loose sheets.” The case was heard “Sur trial al Bar” and various “excepcons” were taken to Bainham's testimony on the grounds of his interest in the will and the lands in suit. The court allowed his evidence, however, “et le jury done verdit ple [pour le] volunt.” The discussion of the case in Nelson, Lex Testamentaria, upon which JA probably relied, concludes: “and this was adjudged to be a good Will.” See note 1713 above. The report indicates, however, that the issue of informality was not directly raised.
15. 5 Bacon, Abridgment 502, a section dealing with capacity to make wills, includes this passage: “A mad or lunatick Person, during the Time of his Insanity of Mind, cannot make Will of Lands or Goods; but such a one as hath his lucida Intervalla, clear or calm Intermissions, may, during the Time of such Quietness and Freedom of Mind, make his Will and it will be good.”
16. John Godolphin, The Orphan's Legacy 23–25 (London, 4th edn., 1701). The pages cited deal with the capacity of “mad persons.” In addition to the passage quoted by JA from Bacon, note 1915 above, the pages contain a discussion of the manner of proof of insanity, including the following: “And here note, that every Person is presumed to be of perfect Mind and Memory, until the contrary be proved. So that he that objecteth Insanity of Mind, must prove the same, for which it is sufficient if he prove, that the Testator was beside himself, or had lost his Reason but just before he made his Testament, though he prove not the Testator's Madness at the very time of making the same, unless the contrary be proved, or Circumstances to induce a contrary presumption. For it is a very tender and difficult point to prove a Man not to have the use of his Reason and Understanding; therefore it is not sufficient for the Witnesses to depose that the Person was mad, unless withal they render upon knowledge a sufficient reason thereof. Neither is one Witness sufficient to prove a Man mad, nor two, in case the one depose of the Testator's Madness at one time, and the other of his Madness at another time; but both agreeing in time, if then the one Witness deposeth of one mad Act, the other of another mad Act at one and the same time, these sufficiently prove that the Testator was then mad, though they do not both depose of one and the same mad Act.” Godolphin goes on to state presumptions in favor of sanity, including the propositions that if the testator is known to have intervals of lucidity, or if the will is “wisely and orderly made” it will be presumed to have been drawn during such an interval. Godolphin, Orphan's Legacy 24. JA copied some of this discussion into his diary, Feb. 1763, when dealing with another will case. 1 JA, Diary and Autobiography243–244.
{ [facing 254] } { [facing 255] }

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Editorial Note

In England the probate of wills of personalty was within the jurisdiction of the ecclesiastical courts, although many related questions, both of administration and distribution, had to be tried at law or in equity. The ecclesiastical courts had no power over wills of realty, because the common law claimed exclusive jurisdiction of title questions. Such wills were proved only if an action at law was brought to test the devisee's right.
One result of this division of jurisdiction was that the validity of a will might be brought again into question in an action at law despite presumably conclusive probate proceedings. In Massachusetts the confusion was relieved somewhat by Province statutes which gave to the judges of probate many powers in the administration and distribution of both real and personal estates.1 Title was still a question for the common law, however, and in Clap v. Randall, the validity of Samuel Clap's will, previously allowed by the Governor and Council sitting as Supreme Court of Probate (No. 15), was reopened and argued anew, apparently without objection. The action may have been permitted either because lack of notice to the plaintiff, or his guardian, was held to relieve him from the bar of the prior probate decree, or because the English practice of not giving conclusive effect to such a decree was followed.2
{ 256 }
The action was a plea of partition brought by the guardian of Michael Clap, minor son of Samuel's deceased eldest son, against the testator's three surviving children, Sarah Randall, William, and Samuel Jr. Under the will, Michael had received only a £60 legacy, apparently because the testator had made inter vivos gifts to his father. The lands in suit had gone to Samuel Jr. and Samuel Randall, Sarah's son. William Clap, who had contested the will in probate, had been virtually disinherited. Michael's declaration ignored the will completely, setting forth that Samuel had died intestate while seized of the lands and that Michael and the defendants, Samuel's only heirs, were thus tenants in common in the premises. Although in form the writ sought money damages for failure to partition, the suit was brought under a Province statute permitting a cotenant to compel division of lands in an action at law.3
{ 257 }
The case came on for trial at Plymouth Inferior Court in April 1769, where Adams entered a plea of not guilty for the defendants. Daniel Leonard's demurrer was overruled and judgment entered on the plea. On appeal to the Superior Court at Plymouth in May 1769 the lower court pleadings were waived and Adams averred that the defendants “and the Plantiff do not hold the said Premises together in common and undivided, as the Plantiffs have above declared.” The case went to the jury.4 Adams' minutes of the evidence and arguments, printed below, indicate that the validity of the will was the principal question argued. Witnesses for the plaintiff testified both as to Samuel Clap's mental state and to the informal character of the document itself. The authorities cited by Leonard are on these points, and James Otis, also arguing for the plaintiff, directly raised the Statute of Frauds. That Act required only that a will be written, signed, and witnessed, but Otis apparently argued that its policy of preventing frauds through proof of the testator's actions should be extended to bar a will with blank pages, which would give great opportunities for later changes.
Adams, as he had in Clap's Will, brought forward authority dating from before the Statute of Frauds, to the effect that wills with defects other than those covered by the Act were good at common law. His principal source seems to have been Nelson's Lex Testamentaria, a treatise of doubtful value in which two of the three cases which Adams cited are misstated in his favor, revealing the pitfall, not unknown today, that awaits one who relies upon secondary sources. No objection seems to have been made to Adams' authority, however, either because no one in the Province had the original reports from which Nelson's work could be refuted, or because Adams' position was accepted as good law despite dubious precedent. The jury returned a verdict for the defendants, and Samuel Clap's estate was finally at rest.5
1. As to the English practice, see 12 Holdsworth, History of English Law 686–689, 695–697; Atkinson, “The Development of the Massachusetts Probate System,” 42 Mich. L. Rev. 425–426 (1943). The basic provision in Massachusetts was the Act of 1 Nov. 1692, c. 14, 1 A&R 43–45, which provided that all lands held in fee might be disposed of by will and that wills were to be submitted to probate under penalty of law. In the event of intestacy administration of both realty and personalty was to be granted and supervised by the judge of probate. Later provisions are summarized in Atkinson, “Massachusetts Probate System,” 42 Mich. L. Rev. 440–447. Atkinson, id. at 445, states that the Act of 17 June 1723, c. 3, 2 A&R 284–285, gave the lands of the deceased directly to the heirs at death, thus removing them from administration. The 1723 act, however, seems to provide only that an administrator de bonis non (i.e. “of the goods not” administered by a previous administrator or executor), appointed for a supplemental administration, was to have no power over unadministered real estate, which descended to the heirs automatically. Subsequent legislation indicates that the provisions of the 1692 act as to administration and distribution of realty by the original administrator were not altered. See Act of 1 Jan. 1735, c. 16, 2 A&R 738; Act of 12 April 1750, c. 20, 3 A&R 495.
2. Under later Massachusetts law, a probate decree was conclusive in an action at law, except as to matters of jurisdiction, such as lack of notice, which could be collaterally attacked. See Smith v. Rice, 11 Mass. 507 (1814); Dublin v. Chadbourn, 16 Mass. 433, 441–442 (1820); Daniel A. White, A View of the Jurisdiction and Proceedings of the Court of Probate in Massachusetts 26–30 (Salem, Mass., 1822); Alger, “Conclusiveness of Decrees of a Domestic Probate Court in Massachusetts,” 13 Harv. L. Rev. 192–193 (1899). That the probate decree was not conclusive is made more likely by the fact that probate jurisdiction was by the Charter of 1691 vested in the Governor and Council, who created the county courts solely by commission, without legislation. It is thus possible that the probate courts were not considered “courts of record.” See Coke, Littleton 260a.
3. Act of 14 July 1693, c. 8, §1, 1 A&R 122. For the will, see No. 15, note 1. The declaration set out
“a plea of partition, for that one Samuel Clap late of said Scituate yeoman deceased, in his life time, in a time of peace, in the sixth year of our reign, was seized in his demesne as of fee, of two parcels of land [description], taking the esplees thereof to the amount of three pounds lawful money by the year. And on the eighth day of December 1766, the same Samuel dyed so seized at said Scituate, and intestate, leaving the above named [defendants] his only surviving children, and the plaintiff, his grandson, the only child of Michael Clap late of said Scituate yeoman deceased, who was the eldest son of the said Samuel the intestate, and died on [the] tenth of June 2d. 1760. Whereupon at the death of the said Samuel, the intestate, the premises by the law of our province of the Massachusetts Bay, descended to the plaintiff [and the defendants], the only heirs of the said Samuel the intestate, to wit two fifth parts thereof to the plaintiff, the only child and legal representative of the said Michael, deceased, the eldest son of the said intestate, and one fifth part thereof to [each of the defendants], and they and the plaintiff are accordingly seized of the same two parcels of land in their demesne as of fee, and do hold the same together in common and undivided. Whereof it appertains that the plaintiff [and the defendants] ought to hold, possess, and enjoy their respective parts thereof in severalty.... Yet [the defendants] tho' often requested, do utterly refuse to divide or make partition of the same parcels of land, that so they, and the plaintiff, may hold and enjoy their respective parts and interest in the premises in severalty as aforesaid, contrary to the said law of the said province in that case made and provided, and to the damage of the said Michael Clap as he by his said guardian saith, the sum of forty pounds.” SF 142299.
Under the Province intestacy law (note 1 above) the eldest son took a double share. In England partition lay among coparceners (cotenants by inheritance) at common law, and among joint tenants and tenants in common by statute. See 6 Dane, Abridgment 478–480; 3 Holdsworth, History of English Law 19. The Province Act of 1693, 1 A&R 122, cited above, established the writ of partition as an action at law for all three classes of cotenancy. Note that the declaration used here states the title of the cotenants in the form followed in real actions, although it was apparently the rule in partition that title could be stated briefly, as being “of the inheritance of” the predecessor, since the action was for possession, not property. See Fitzherbert, New Natura Brevium 142 note (London, 1755); 16 Viner, Abridgment 240; see also Perham, American Precedents 313–314 (1802). As to the form in real actions, see Charles Jackson, A Treatise on the Pleadings and Practice in Real Actions 348 (Boston, 1828); No. 17, notes 4–64, 5, and 6; p. 36, notes 13, 1429, 30. Although in form the writ sought damages, it was the rule at common law that no damages would be awarded, and that the judgment was in fact for partition. See 16 Viner, Abridgment 236–237, 240; 6 Dane, Abridgment 491. The procedure followed in this case is to be distinguished from the proceeding by original petition in the Superior Court, provided by Act of 1 Feb. 1749, c. 12, 3 A&R 426–428. The latter was not an adversary proceeding, no provision being made for trial of issues under it. In 1787 the defect was remedied by a provision for pleading and trial to a jury in such cases. See 6 Dane, Abridgment 483.
4. See the pleadings in both courts and the Inferior Court judgment, in SF 142299. Adams' plea of not guilty in the Inferior Court was probably an informal one designed to implement the sham demurrer which was evidently intended. See p. xlvi above. The plea was in general use for real actions in Massachusetts, and thus would arguably have been proper in partition. See Joseph Story, A Selection of Pleadings in Civil Actions 333 (Salem, Mass., 1805). In this case, however, it might have been subject to the logical flaw that it seemed to deny the refusal to partition. JA's Superior Court plea was in literal translation, “non tenent insimul,” a proper plea in partition. See 5 Comyns, Digest 274; Coke, Littleton 167; compare 6 Dane, Abridgment 491.
5. Min. Bk. 82, SCJ Plymouth, May 1769, N–5; SCJ Rec. 1769, fols. 183–184.

Docno: ADMS-05-01-02-0006-0004-0002

Author: Adams, John
Date: 1769-05

Adams' Minutes of the Trial1

Plymouth Superior Court, May 1769
Lex Test., Page 576. Stephens vs. Gerard, 1. Sid. 315. Page 571, Sackville vs. Brown. Page 576, Chadron v. Harris, Noy 12.2
Randal et als. vs. Clap.
Zechh. Daman. In the latter Part of his Life, he seemed not so capable, intosticated3 and Passionate. Good Ideas.
Bezaliel Curtis. A good deal of Judgment once. He seemed to be in a hurry, a fury, &c. I did not look upon him the Man he used to be. One time he seemed cool, and calm. At other Times he said that Bill would not catch his Horse and Sam. had promised to do it. Will the Eldest. He said Will had wronged him, and had Creatures and not returned'em.
Josa. Jacobs. Fortnight before he died, Saml. gave me the Will to keep. The old Man told me, he had sent it by Saml. December Court delivered [to] me. He left Blanks that Coll. Clap might view it and { 259 } alter it. He said so.4 I did not see but what his Mind was as usual. He never [ . . . ].
Hawk. Cushing. Unreasonably prejudiced vs. his son Wm. Whenever Wills Name was mentiond he was in a Passion. He would talk about common Affairs, he would talk well eno. I [swore?] to Man it shall be £4000 out of his Pockett.
Abigail Sylvester. I should venture to trade with him as well as ever. In a Passion, always hasty.
He left Blanks to alter when he had occasion for it, he said.
Swing. 522.5 82. Become a Child.6 Proof of it.
{ 260 }
Will itself.
Otis. Statute of Frauds, requires the Subscription of 3 Witnesses.7 Many Frauds were found to be committed, concerning Wills. The design that the Witnesses may be able to swear to the Identity of the Writing.
This Method lyable to Fraud and Interpolation.
1. In JA's hand. Adams Papers, Microfilms, Reel No. 185. The minutes were written with a haste and carelessness unusual even for JA's courtroom jottings, and both words and sense in a few passages are beyond recovery. Among other things, JA's titling of these minutes “Randal et als. vs. Clap” seems to be a misnomer. Sarah Randall and her brothers were defendants below and appellees in the Superior Court. See note 4 above. No other action by this name has been found in the files.
2. As to “Stephens v. Gerard,” see No. 15, notes 1713, 1814. The latter case and the others cited here are presumably drawn from William Nelson, Lex Testamentaria (London, 2d edn., 1724). This work, at p. 576, first compares the common-law rule of two witnesses for a will of goods and three witnesses for lands, to the varying rules of the civil law, the law of nations, and the canon law. It then cites Chadron v. Harris, Noy 12, 74 Eng. Rep. 983 (K.B., ca. 1605), apparently as holding an unsigned and unsealed will good where three witnesses were produced, two of whom “deposed on the Report of others, but the third had subscrib'd his Name to the Will.” According to the actual report, however, this case involved questions of the validity of a will in which no executor was named, and the power of the common-law courts to issue a writ of prohibition to the ecclesiastical court in a suit by a legatee under such a will, when administration had been granted despite the defect. The citation seems to have been misplaced in the margin of Lex Testamentaria by the printer, since the immediately preceding paragraph deals with prohibition in a similar matter. Sackville v. Brown, Keilw. 209, 72 Eng. Rep. 389 (C.P. 1558) was a case in which, according to Lex Testamentaria 571, “the Testator on his Death-bed desir'd another to write his Will, who took short Notes of it, and went Home to write it in Form, and soon return'd with it written, but before he came the Testator was dead; yet this was adjudg'd a good Will within the Statute 32 H. 8 [32 Hen. 8, c. 1 (1541)].” The report confirms this account.
3. Thus in MS—the result of a natural and amusing confusion of associations.
4. The deposition on interrogatories of Joshua Jacobs in the files of the Supreme Court of Probate substantiates this testimony as to the delivery of the will. SF 129912. “December Court” presumably refers to the sitting of the Inferior Court at Plymouth on the second Tuesday in December. Act of 19 Feb. 1765, c. 20, §1, 4 A&R 737. Since this date was 9 Dec. in 1766, and Clap died on 8 Dec., the witness may mean that Clap informed him of his intent two weeks before his death, but the will was not delivered until later. “Coll. Clap” may be Thomas Clap, perhaps a relative, who was a judge of the Plymouth Inferior Court. Whitmore, Mass. Civil List 96–97. The files include the deposition of one “Thomas Clapp,” 10 May 1769, that in the spring of 1766, Samuel Clap had shown him an old will in a paper book with stitched leaves and many blanks, and had asked him to “write” a new will. This Thomas did. In Oct. 1766, Samuel asked him to write still another will to disinherit his son William, producing as a draft the document now in controversy. Thomas could not comply, because he “was bound on a Jorney ... not because he [Samuel] was not compus mentis.” SF 142299.
5. Error for “Swinb.” See Henry Swinburne, A Treatise of Testaments and Last Wills 522 (London, 6th edn., 1743): “What if a Writing be found written indeed with the Hand of the Testator in Manner of a Will, wherein he hath disposed his Goods, and appointed an Executor, but the Writing is neither sealed with the Testator's Seal, nor subscribed with his Name, nor by him acknowledged before Witnesses to be his Last Will? Whether shall this Writing be accounted to be a Draught of the Testator's Will, or the Testament it self? I suppose that the Solution of this Question resteth in the Variety of Circumstances. For if the Writing be unperfect, for that perhaps the Testator doth leave off in the Midst of a Sentence, and without any Date, or if the same be written with strange Characters, or if the same be written in Paper, and great Distance betwixt every Line, divers Emendations and Corrections made betwixt the Lines; if also the same be found amongst other Papers of finall Value or Account; by these Circumstances it seemeth rather a Draught or Preparation to a Testament, than the Testament it self. But on the contrary, if the Writing be perfect or fully finished, having a certain Date of the Day, Month, and Year, and be written with usual and accustomed Letters in Parchment, without Corrections, and with small Distance betwixt the Lines, and also found in some Chest of the Testator, among other Writings of the Testator of great Value and Moment; by these Circumstances it seemeth rather to be the very Testament it self than a Draught only.”
6. Swinburne, Testaments and Last Wills 82 (1743): “Yet if a Man in his old Age do become a very Child again in his Understanding, (which Thing doth happen to divers Persons, being as it were worn away with extreme Age, and deprived not only of the Use of Reason, but of Sense also,) such a Person can no more make a Testament than a Child.”
7. That is, the Province Statute of Frauds, Act of 22 Oct. 1692, c. 15, 1 A&R 46–47 (patterned after the English statute, 29 Car. 2, c. 3 [1676]), which provided that “For prevention of many fraudulent practices which are commonly endeavoured to be upheld by perjury and subornation of perjury ... [§3] all devises and bequests of any lands or tenements shall be in writing, and signed by the party so devising the same, or by some other person in his presence and by his express directions, and shall be attested and subscribed in the presence of the said devisor by three or four credible witnesses, or else shall be utterly void and of none effect.” The Act further provided that no devise in writing should be revoked or altered other than by destruction by the testator, or “by some other will or codicil in writing, or other writing of the devisor, signed in the presence of three or four witnesses, declaring the same.” Id., §4.

Docno: ADMS-05-01-02-0006-0005-0001

Editorial Note

In August 1770, with Adams and Jonathan Sewall as his counsel, John Whiting had prevailed in an action of trespass which he had brought against his neighbor Ichabod Ware for a tract of land near Smoking Hill in Wrentham. Referees, under a rule of the Superior Court directing them to fix a boundary between the litigants, had reported that no line could be drawn, because Ware had no claim to any portion of the lands which Whiting claimed.1 Whiting traced his title to Ebenezer Hill, who had died in 1732 owning substantial real estate in Wrentham. In his lifetime Hill had conveyed fifty acres at Smoking Hill to his brother Jabez. William Bollan and Henry Laughton, grantees of Jabez, had conveyed the same premises to Eliphalet Whiting, John's father. Ware's unsuccessful claim had been based on a conveyance of several parcels in the same vicinity made in 1734 by Ebenezer's administrator, Jonathan Whitney, to one Joshua Morse. The claim had failed, apparently because Ware could produce no evidence of the passage of title to him from Morse.2
Perhaps as a result of this decision, Abiel Hill, posthumous daughter { 261 } and only heir of Ebenezer, brought an action against Whiting, claiming possession of the tract formerly in suit, which she alleged to be 99 ½ acres in extent. Her declaration purported to be in “ejectment.”3 In England, this form of action, originally the remedy of a lessee turned out of the leased premises, had, through an elaborate fiction, become the usual method of trying title to land. The pleadings, which echoed the origin of the action, told a tale in which John Doe, a fictitious lessee of the actual plaintiff purported to sue Richard Roe, an equally nonexistent ejector, in whose name the real party in interest was called upon to defend. If the actual plaintiff succeeded in his suit, he was awarded possession of the land. Since the action was in form only for a single trespass, it could have been brought repeatedly by an unsuccessful plaintiff for later trespasses, but the courts tended to discourage such suits when the title in question was the same. This drawback was rendered of such little effect that by the 18th century ejectment had largely replaced the numerous ancient real actions, with their cumbersome process, technical rules, and narrow scope.4
While the fictional form of ejectment was not unknown in Massachusetts, it seems to have been little used, apparently because of the lack of conclusiveness and a feeling that the adventures of Doe and Roe led to unnecessarily complex and wordy pleading. Instead, “ejectment” was a generic term for a form of action which could embrace any of the ancient real actions and attendant rules that a given case demanded, but which embraced them within a simple form of writ and process that avoided medieval mysteries and led to a trial like that in any other civil suit.5 Abiel's { 262 } suit shows that there were situations in which the Massachusetts form was an improvement upon the English.
Her declaration was a form apparently unique to Massachusetts which had some attributes of the ancient assize of mort d'ancestor, but was in effect a variety of writ of entry.6 Even in England one of the ancient forms would have been necessary in her case, because ejectment depended upon a right of entry in the actual plaintiff. Abiel's right had accrued in 1732, at the death of her father, or at best in 1733, when she was born. Under the applicable statute of limitations, an entry upon lands had to be made within twenty years after the right accrued, or if it had expired during the minority of the claimant, within ten years after his majority. Abiel's right of entry was thus lost, and with it her right to proceed in ejectment as that action was known in England.7
At the trial in the July 1771 Suffolk Inferior Court, with Adams once again of counsel, Whiting obtained judgment on a demurrer to his plea of not guilty. On appeal to the Superior Court in February 1772 the demurrer was waived and the case went to the jury, which brought in a special verdict. The declaration had alleged that Abiel's father died seised on 30 October 1732. The jury found that the actual date of his death was 21 October 1732; that if the court should hold that this discrepancy was not a bar to the action, then Abiel could recover 21 acres and 31 rods of { 263 } the land sued for (apparently a parcel which had not passed under the grant from Ebenezer to Jabez); that otherwise she took nothing.8
At the August 1772 session of the court Adams for Whiting, and Josiah Quincy Jr. for Abiel, argued the question presented. Adams' minutes (Document I) set out authorities for his position that the date of Ebenezer's death was a material allegation. Treating the action as a writ of right, he apparently argued that the time in which the ancestor was seised must always be set out, and that the exact date was material because of the statutory periods of limitation for the bringing of actions for the recovery of lands. At the end of these notes, which were probably before him as he argued, he took down the cases cited in opposition by Quincy and made a notation of the court's unanimous opinion that Abiel could recover in accordance with the verdict.9 The files of the case contain the actual opinion of Judge Trowbridge on this and another point apparently raised by Adams, the validity of a verdict for less land than was sued for.10 This unusual item appears as Document II.
The court's decision seems sound. Even Adams' authority indicates that only the fact of seisin, not the precise date, is material. As for the statute of limitations, although in real actions entry or seisin within the required time had to be established by the plaintiff, the discrepancy in dates was not material here.11
1. Min. Bk. 91, SCJ Boston, Aug. 1770, C–1. SF 101696.
2. See the various deeds, extracts from the Wrentham Proprietors' records, and the deposition of Ebenezer Fisher in the files of Hill v. Whiting. SF 102137. An abstract of Whiting's title in JA's hand, based on the foregoing materials, and apparently used in the action against Ware, is in Adams Papers, Microfilms, Reel No. 185.
3. A copy of her declaration is in JA's Pleadings Book, p. 36–37 above. Although “Abiel” might ordinarily be a man's name, JA was correct in characterizing her as female in the title to her pleading. Ibid. See a copy of her birth record in SF 102137.
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.
6. See p. 36, note 3014, above. The usual writ of entry was brought for a disseisin (wrongful entry during the life of one seised). This was a case of an “abatement” (wrongful entry between the death of the seised ancestor and the entry of the heir). Ordinarily in an abatement the plaintiff still had a right of entry under which he could enter, thus momentarily obtaining seisin. Continued possession thereafter by the wrongdoer amounted to a disseisin and the plaintiff could bring a “writ of entry in the quibus,” the usual remedy of the disseised against the disseisor. Abiel had lost her right of entry, however, so that neither entry in the quibus nor the English form of ejectment was available to her. See note 7 below. The assize of mort d'ancestor, an ancient remedy for an abatement, had fallen into disuse, because it did not lie for lands devisable by will. JA in argument seems to have regarded the suit as one on a writ of right, and such a writ would have been appropriate here. The actual form used more closely resembles that in a writ of entry, however, and Stearns definitely classified it as such. See Stearns, Real Actions 146–169, 176–179, 350–359; p. 36, note 3014 above. See also 2 Pollock and Maitland, History of English Law 56–74; George Booth, The Nature and Practice of Real Actions 174–178 (London, 1701); Jackson, Real Actions 2–3, 195–196; 3 Blackstone, Commentaries * 186–187.
7. The statute is 21 Jac. 1, c. 16, §§1, 2 (1623). Ejectment might also have failed because some of the lands in dispute had apparently been conveyed under the administrator's deed to Joshua Morse. Whiting might have raised the defense of ius tertii (a superior right in a third party), which was good in ejectment, but not in a real action. Moreover, since Whiting in all likelihood was not the original wrongful entrant, Abiel's right of entry might also have been “tolled by descent,” that is, lost by the passage of the property to the heir of the original abator. See 3 Holdsworth, History of English Law 89–90; 7 id. at 20–21, 61–69; Charles Runnington, Action of Ejectment 12–13 (London, 1781); Jackson, Real Actions 5–6.
8. Min. Bk. 95, SCJ Suffolk, Feb. 1772, C–63. See the proceedings in the Inferior Court where Whiting had made an unsuccessful effort to vouch in his grantors, and the special verdict, with a draft in JA's hand, in SF 102137.
9. Min. Bk. 95, SCJ Suffolk, Aug. 1772, C–41; SCJ Rec. 1772, fols. 109–110.
10. The decision for Abiel on this point was in accord with authority. See Runnington, Ejectment 109–110, 130–131.
11. See Stephen, Pleading 311–314; Stearns, Real Actions 241–242. Compare 3 Bacon, Abridgment 518–519.

Docno: ADMS-05-01-02-0006-0005-0002

Author: Adams, John
Date: 1772-08

Adams' Minutes of the Argument1

Suffolk Superior Court, Boston, August 1772
Hill vs. Whiting
In this Case the Plaintiff has alledged that her Father died seized on the Thirtyeth of the Month. But the Jury have found that he died seised on the Twenty first of the Month.
1. Inst. 293. a.2 “Also where a Man will sue a Writ of Right, it behoveth that he counteth of the Seisin of himself or of his ancestors, and also that the Seisin was in the same Kings Time, as he pleadeth in his Plea. For this is an ancient Law used, as appeareth by the Report of a Plea in the Eire3 of Nottingham.”
{ 264 }
Fitz. N.N.B. page. 69.4 Writ de Droit. “In this Writ he ought to count of his own Possession, or of the Possession of his Ancestor; otherwise the Writ doth not lie, and he ought to alledge Esplees” &c.5
From these Authorities it seems, that the Demandant must count of a Seisin at some certain Time as upon a certain Day, or within some certain Time as within such a Kings Reign, or within some other certain Time, and must prove accordingly.
32. H. 8. and 21 Jac. 1. Limitation of Real Actions.6 Bac. Abr. Vol. 3. 501.7
Holbeck vs. Bennett, 2. Lev. 11. 2. Saund. 317.8
Blackwell vs. Eales, 5. Mod. 286.9
Rex vs. Bishop of Chester, Skin. 660.10
Lane vs. Alexander, Cr. Ja. 202.11
Cro. Car. 360.12
2. Comyns's Rep. 12. 13.13
{ 265 }
3. Lev. 193. W[he]r[e] Day is made Parcell of the Issue it is ill.14 Brooke Trav. pl. 40.15
2. Mod. 145. Brown vs. Johnson.16 Time is not traverseable. Plaintiff must alledge a Time for Forms sake but Defendant ought not to make Time Parcell of the Issue.
Court unanimous that the Day is not material, and therefore the Plaintiff recover.
1. In JA's hand. Adams Papers, Microfilms, Reel No. 185.
2. Coke, Littleton *293a. Quotation marks supplied.
3. The court of justices in Eyre, royal judicial officials who held court on circuit in medieval times. Plucknett, Concise History 144–146.
4. Fitzherbert, New Natura Brevium 69 (London, 8th edn., 1755) Quotation marks supplied. The quotation is actually from a section on writs of right of advowson, a special variety of the writ dealing with the right to present a candidate for a church or benefice. In the section dealing with writs of right generally there is a similar statement, with the qualification, perhaps dangerous to JA's position, that “If he count the Seisin of his Ancestor, he may alledge the Seisin in the Time of King Richard the First.” Id. at 11.
5. That is, the products of the land. It was alleged here. See the declaration, p. 36, note 3014, above.
6. The statute, 32 Hen. 8, c. 2, §2 (1540), provides that no writ of entry may be maintained upon the seisin of an ancestor or predecessor which was not in effect within fifty years prior to the date of the writ. As to the statute of 21 Jac. 1, see text and note 7 above.
7. 3 Bacon, Abridgment 501–504, setting out the statutes cited in note 176 above.
8. Holbeck v. Bennett, 2 Lev. 11, 83 Eng. Rep. 429; sub nom. Bennet v. Holbech, 2 Saund. 317, 85 Eng. Rep. 1113 (K.B. 1682) (Time and place of lease pleaded in avowry in replevin held not traversable, per Hale, C.J.). This citation and the remainder of the minutes, written in a hastier hand with a heavier pen, are JA's on-the-spot notes of Quincy's argument and the court's ruling.
9. Blackwell v. Eales, 5 Mod. 286, 87 Eng. Rep. 660 (K.B. 1696) (Time but a circumstance, where evidence of a thing done must be given; traverse taking issue thereof would be bad, and declaration alleging trespass on a day not yet come held aided by verdict).
10. Rex v. Bishop of Chester, Skin. 651, 660, 90 Eng. Rep. 291, 295 (K.B. 1696) (Failure to deny exact time of seisin in quare impedit does not admit it, because exact time immaterial; seisin generally in time of peace, &c. is enough).
11. Lane v. Alexander, Cro. Jac. 202, 79 Eng. Rep. 177 (K.B. 1607) (In ejectment, where one copyhold is pleaded as being before another, denial of exact date of earlier copyhold held bad on demurrer as immaterial where question is which came first).
12. This citation has not been identified. In all editions of Croke's Reports in the Time of Charles I (“Cro. Car.”) consulted by the editors, page 360 is blank.
13. An inadvertence for —— and Blackall v. Heal et al., 1 Com. 12, 92 Eng. Rep. 933 (K.B. 1696), another version of Blackwell v. Eales, note 9note 20 above.
14. An inadvertence for Dring v. Respass, 1 Lev. 193, 83 Eng. Rep. 364 (K.B. 1666) (Traverse to declaration in debt on a judgment held bad on demurrer where it had effect of putting date of the judgment in issue).
15. Apparently an inadvertence for Robert Brooke, La Graunde Abridgement, tit. Traverse per sans ceo, pl. 140 (London, 1586) (Debt on condition that defendant enter peacefully before Michaelmas; plea that he entered peacefully on such a day before the feast. Replication bad that he entered forcibly on another day, because day not traversable).
16. Brown v. Johnson, 2 Mod. 145, 86 Eng. Rep. 991 (K.B. 1688) (In action of account, dates during which defendant was bailiff are matter of form, not issue).

Docno: ADMS-05-01-02-0006-0005-0003

Author: Trowbridge, Edmund
Date: 1772-08

Opinion of Judge Trowbridge1

Suffolk Superior Court, Boston, August 1772
In the Case of Hill Agt. Whiteing in Ejectment,
Whether Hills Father died on the 21st or 30th day of October 1732, He [i.e. she] is alike intitled to recover the 21 acres and 31 Rods of Land, and to recover the same by an Action of Ejectment; therefore on which of those Days he died seised, is an Immaterial Circumstance and not Traversable. Holbeck vs. Bennet, 2 Lev. 11, 2 Saunders 317. Blackwell vs. Eales, 5 Mod. 286. Rex vs. Bishop of Chester, Skin. 660. Lane v. Allexander, Cr. Ja. 202. And the Plaintiff may recover so much as he is Intitled unto, tho it be less Than he demands in Ejectment. 1 Burrows 329.2 I think the Plaintiff Ought to have Judgment for the 21 Acres and 31 Rods, and Costs.
[signed] Edm: Trowbridge
1. In Edmund Trowbridge's hand. SF 102137.
2. Denn v. Purvis, 1 Burr. 326, 329, 97 Eng. Rep. 335, 336 (K.B. 1757) (Mansfield, C.J.).

Docno: ADMS-05-01-02-0006-0006-0001

Editorial Note

Prescott v. Keep, in which Keep, Adams' client, was the original plaintiff, began with a complicated argument on a pleading point. The defendants sought to bar the action on the ground that the plaintiff had failed to join (bring in) his cotenants as coplaintiffs. The issues which seem to have been argued were whether defendants should have raised the point at the outset (that is, by plea in abatement), and whether, having pleaded the general issue, they would at the trial be prevented from introducing evidence bearing on the failure to join. If the court followed the authority set out in Adams' minutes (Document I), the answer was that, since plaintiff's writ had not averred the cotenancy, defendants would not be allowed to raise the issue at the trial. In the related case of Prescott v. Priest, the initial question was Adams' contention that the death of one of the original plaintiffs might cause the action itself to die. As Justice William Cushing's report (Document IV) shows, the court ruled that it did not; Adams was then allowed to file an answer on the merits.
Once the technicalities clear away, the Prescott cases illustrate neatly the legal problems that could arise over the right to use flowing water, here, Stony Brook in Westford. The Prescott family had long maintained a gristmill and a sawmill on the stream, near its source.1 In 1720, old Jonas Prescott, his two sons, Jonas and Benjamin,2 and three others had formed a joint venture to erect and maintain an iron forge on land owned by young Jonas slightly upstream from the mills.3 The forge, of course, depended on water power to operate its bellows.4
{ 267 }
By a complicated and sometimes obscure series of conveyances, a five-eighths interest in the forge had come to Jonathan Keep,5 who apparently attempted to maintain and even improve the ironworks without the consent of the Prescott interests. The latter had other plans for the use of the available water, because in 1771, according to Keep, they altered the dam previously shared with the iron works and erected a new dam some thirty or forty rods upstream.
There were several issues between the parties. First, the Prescotts insisted that the original articles of 1720 governing the ironworks ought not to be construed to permit the holder of a majority interest to keep the works in operation without consent of the minority. Second, the Prescotts impugned Keep's title to the five-eighths interest; he was, they argued, merely leasing the use of the works from the Prescotts, a relationship which could terminate if the Prescotts so desired. Finally, it appears, the Prescotts claimed that, inasmuch as title to the land on which the forge stood, as well as to the relevant part of the stream itself, remained in the Prescott family, Keep had no right to the water. Keep denied all these contentions and instituted the first of the actions documented here (Document I).
Meanwhile, Keep's apprentice, Joel Priest, had on various occasions removed the flume (or sluice) lever from the Prescotts' new dam, had shut down their mill gate (thus preventing diversion of the water), and had even broken the mill dam itself. The Prescotts thereupon sued Priest directly (Documents II–IVII, III, and IV).
In both cases the Middlesex Inferior Court judgments resulted from sham demurrers.6 Pleadings being reopened in the Superior Court, the technical arguments were determined, and after the usual continuances the matters went to trial. Adams, with Jonathan Sewall, represented Keep and Priest. The verdict for Keep was £40, but the Prescotts moved in arrest of judgment, and the matter did not conclude until 1776 when a file paper indicates that the parties settled the action.7 In the other case the jury awarded the Prescotts damages of 40s. and costs of £19 16s. 10d.8
1. Westford was until 1730 a part of Groton. “'June 15, 1680, on a training day, granted unto Jonas Prescott, that he should take up a piece of land at Stony brook, in reference to the setting up of a mill there.'” “'At a general town meeting at Groton, June 13, 1681: Then granted to Jonas Prescott liberty to set up his corn mill at Stony brook.'” “'An agreement made between Jonas Prescott and the town of Groton, that he, the said Prescott, have liberty to set up a saw mill at Stony brook, and to have the use of the stream ... always provided, the saw mill do not hinder the corn mill.'” Caleb Butler, History of the Town of Groton 37–38 (Boston, 1848). Later, it seems, a fulling mill was added. Deposition of Nathaniel Prentice, SF 148100.
2. Father of William Prescott (1727–1795), who commanded troops at Bunker Hill. Samuel A. Green, Three Historical Addresses 105–107 (Groton, 1908).
3. Young Jonas (actually he was 42 years old at the time) played the major role in and took the major profits from the enterprise, which was “the fourth or fifth of the kind in New England. The ore used was the variety known as bog-iron, and was procured in Groton. The 'Groton iron,' produced at the forge, was not of very good quality, being brittle, and it was not extensively used. The business was carried on until the year 1865, when the Forge Company ceased to exist.” Edwin R. Hodgman, History of the Town of Westford 243 (Lowell, Mass., 1883). The JA materials here set forth seem to refute Hodgman's thesis that during the life of the company its control rested in the hands of old Jonas' descendants. The articles of association are preserved in the file papers of Prescott v. Keep, SF 148227.
4. See the description of a contemporary ironworks, in which “The bellows ... are very large, and moved by water.” John Harris, Lexicon Technicum, tit. Iron (London, 1736).
5. Andrew Oliver prepared a list of forges and furnaces in Massachusetts in 1758, which shows the forge at Westford to be in the possession of “Keep.” Arthur C. Bining, British Regulation of the Colonial Iron Industry 126 (Phila., 1933).
6. SF 148100, 148227.
7. Min. Bk. 96, SCJ Middlesex, Oct. 1773, C–13; SF 148227. No record reference has been found.
8. Min. Bk. 96, SCJ Middlesex, April 1773, C–20; SCJ Rec. 1773–1774, fols. 18–19.

Docno: ADMS-05-01-02-0006-0006-0002

Author: Adams, John
Date: 1773-10

Adams' Minutes of the Trial1

Middlesex Superior Court, Cambridge, October 1773
Prescott vs. Keep.
See 1. Inst. 200 b.2 to maintain this Action.
Litt. §315.3 T[enant]s in Common shall have personal Actions jointly.
[2] Cro. 231. Some vs. Barwish.4 They shall join in Trespass and for Nusance.
2 Vent. 214.5
May be taken Advantage of under the general Issue.6
1 Vent. 214.7 Cant be given in Evidence unless one Tenant in common brings Action vs. another.
1 Mod. Ent. 31.8 If it appears on the Writ, Defendant may take Advantage of it under the general Issue.
Latch. 152, 3.9
Defendants Witnesses.
Ebenr. Hadley. Worked at the framing and raising of the new forge. Only a frame in 1770. No new Wheels. The Prescotts forbid Captn. Keep from improving. About 2 foot bigger. Captn. Keep
David Goodhue. Saw Captn. Keep pay Rent. ⅛th Part. Keep and { 269 } Prescot ballancd Accounts. Keep gave a Note. Rep[ai]rs and Improvement and Forge, Land and Water. K[eep] has often told me that he paid Rent for the whole that he improved and had always paid Rent to Coll. Prescott, and had Receipts till this Contention and since then they would not receive it.
Oliver Parker. Keep said he had Money for the Rent of the old Iron Works. 4 years ago. Prescot came in and Keep paid him Rent for one Year 8 dollars. Prescot said he was obliged to pay it to others. Eben. and Dr. Prescott.
Caleb Woods. K[eep] said they had paid Rent to the Prescotts to their Satisfaction.
Tim. Prescott. Heard Captn. Keep Say he had paid Rent for ⅝ths and had Receipts. And Jona. K[eep] Said he had been and tendered the Rent and they would not take it.
Gershom Fletcher. Keep told of paying Rent to the Prescotts for the Water. Keep said Prescott had a Bond and he paid untill the Bond was so full, that they could enter no more.10 Then they made Receipts.
1719. Jonas Prescots deed to Jonas the Grandfather of the Defendant,11 and the Grandfather granted one half to Ebenezer.
1749. Aug. 17. Deed from Jonas Prescott to Ebenezer, one of the defendants. ½ of all my homestead. 200 Acres.12
1727. Shipley to Eb. Prescot of ⅛ of the forge.13
Putnam.14 Plaintiff has not made out his Title to ⅝ths with any certainty. Answer his fathers Deed to him is of ⅝ths.15 Kent conveys to J. Keep ¼–i.e. 2/8ths.16 Kent to Lyman ⅜ths.17 Lymans Will18 and his Widows Deed i.e. Saml. Hunt and his Wifes Deed.19
{ 270 }
Plaintiff has not proved any Right in Hunts Wife, i.e. Lymans Widow. Answer Saml. Kent sold to Caleb Lyman. See the deed.20
B. Prescott sells all his Right.21 Dont appear what it was.
Articles.22 To be kept up so long as the Major Part should agree to carry on these Works.23 Never the design that if one Purchased more than half the shares that he should have Power to controul the rest.
The Action must be brought upon the Articles. No support of this Action.
Keep went on in opposition to other Proprietors who forbid him going on. If he can do this he can continue them forever.
The Deed produced by Us comprehends both the Dams and both the Mills.
Whoever owns the Land on both sides, owns the Land under the stream.
By the same Reason an Action would have lain, if he had put up a Dam, a mile of[f].
A Dam above, may be of great Advantage. Putnam knows an Instance.
Damages. Only 1½ Ton lost making. Mem. Coal lost. And our [loss?]24 As Priest says.
An hole in the old Dam. Nothing more.
One Witness swears that a Passage Way has been left open there for fish. Then the sluice was made by one of the owners of this Dam—some say to set up a Malt Mill. But none set up.
{ 271 }
Law obliges the owner of Dam to keep open a passage for fish.25
Water carried to the fulling Mill, by a sluice Way or Ditch, at the End of the Dam.
Co. Lit. §324. Notes 200b. Tit. Tenants in Common. If one Tenant in common corrupts the River, the other may have his Action on his Case.26
J. Trowbridge.
2. Black. 209.27 Fee simple conditional, base or qualified fee. Tenants of the Manor of Dale.
Ld. Ray.28 Judge Powell. A Grant so long as Bow Church stands. Or so long as J.S. has Heirs of his Body.
P. Williams. Macclesfield.29 So long as such a Tree stands.
1. In JA's hand. Adams Papers, Microfilms, Reel No. 185.
2. “If two several owners of Houses have a River in Common between them, if one of them corrupt the River, the other shall have an action upon his Case.” Coke, Littleton 200b, §323.
3. Coke, Littleton §315: “By this it appeareth that Tenants in Common shall have personal Actions jointly. And it is to be observed, that where damages are to be recovered for a wrong done to Tenants in Common ... and one of them shall dye, the survivor of them shall have the action.”
4. Some v. Barwish, Cro. Jac. 231, 79 Eng. Rep. 200 (K.B. 1610): “Where a Nusance is made to the land of two Tenants in Common, ... they shall joyn in the Action; for it is personal.”
5. Apparently an inadvertence for 1 Vent. 214; see note 157 below.
6. This does not relate to the preceding citation, but the state of the MS suggests that it may pertain to the citation to Mallory, Modern Entries, note 168 below.
7. Anonymous, 1 Vent. 214, 86 Eng. Rep. 144 (K.B. 1673): “In Trespass Quare clausum fregit 'tis a Plea in Abatement to say, That the Plaintiff is Tenant in Common with another: But cannot be given in Evidence upon Not Guilty, as it may where one Tenant in Common brings Trespass against the other.”
8. 1 Mallory, Modern Entries 31: “If there be two Tenants in Common, and one only brings an Action where they ought to join; if this appears by the Plaintiff's own shewing, the Defendant may take advantage of it upon the General Issue, but if it does not appear, then it ought to be pleaded in Abatement. Latch 153.”
9. Harman v. Whitchlow, Latch 152, 82 Eng. Rep. 321 (K.B. 1627): If one joint tenant or tenant in common brings an action alone, and general issue pleaded, and the tenancy in common appears by the verdict, judgment for the plaintiff; the plea should have been in abatement.
10. The witness refers to the entry of payments on the back of the bond (or lease). This document is not in the file.
11. Deed, Jonas and Mary Prescott to Jonas Prescott Jr, 8 Oct. 1719; Middlesex Reg. Deeds, Lib. 19, fols. 456–457; SF 148227.
12. Deed, Jonas Prescott [Jr.] to Ebenezer Prescott, 17 Aug. 1749; Middlesex Reg. Deeds, Lib. 48, fols. 621–622; SF 148227.
13. A receipt for this deed, John Shipley to Ebenezer Prescott, 21 Oct. 1727, is in SF 148227.
14. James Putnam, counsel for the Prescotts.
15. Deed, Jabez Keep to Jonathan Keep, 22 May 1771; Middlesex Reg. Deeds, Lib. 72, fol. 1; SF 148227. JA was noting that this deed answered Putnam's argument.
16. Deed, Samuel Kent to Jabez Keep, 19 Nov. 1729. Middlesex Reg. Deeds, Lib. 71, fols. 56–57; SF 148227.
17. Deed, Samuel Kent to Caleb Lyman, 20 Mar. 1735. Middlesex Reg. Deeds, Lib. 36, fol. 120; SF 148227.
18. Will, Caleb Lyman, dated 18 March 1737. SF 148227.
19. Deed, Samuel and Susanna Hunt to Jabez Keep, 11 Sept. 1770. Middlesex Reg. Deeds, Lib. 72, fol. 317; SF 148227.
20. See note 2517 above.
21. Deed, Benjamin Prescott to Samuel Hartheway, 29 June 1728. Middlesex Reg. Deeds, Lib. 72, fols. 479–480; SF 148227.
22. Articles dated 6 Feb. 1720, between Jonas Prescott, Jonas Prescott Jr. Benjamin Prescott, John Shaple, John White, and Caleb Trowbridge. The parties agreed “to build, Erect and set up, a Good strong Sufficient and Substantial Forge, Building or Works for the making of Iron by one Fire on, or by, the Brook called Stoney Brook in the Township of Groton almost at the same Place where the said Jonas Prescott has a sawmill not long in standing.” SF 148227.
“We the Parties above-named do Covenant consent and agree that when and so soon as the Greater part of the Owners abovesaid their heirs, or Assigns shall conclude and agree to Let alone and cease Improving of the said Forge, or Iron Works for the Use aforesaid. The Irons, other Tools and materials, shall be sold and the money that shall be received for them shall be Divided, and Shared betwixt us, our heirs &c. In Proportion, to what Each one is to Pay, as aforesaid or Otherwise disposed of as the Major Part of us shall Agree and conclude upon.” SF 148227.
24. MS unclear. But probably in response to Putnam's argument that the damages were only the iron lost when the bellows stopped, JA contended that the damages ought to include the value of the wasted fuel and (possibly) the lost profits.
25. Probably a reference to the Act of 15 Jan. 1742, set out in No. 34, note 145.
26. See note 102 above.
27. Probably this should be 2 Blackstone, Commentaries *109: “A base, or qualified, fee is such a one as has a qualification subjoined thereto, and which must be determined whenever the qualification annexed to it is at an end. As in the case of a grant to A and his heirs, tenants of the manor of Dale; in this instance, whenever the heirs of A cease to be tenants of that manor, the grant is intirely defeated.”
28. Presumably this refers to a case in Lord Raymond's Reports, and to a dictum by John Powell (1645–1713), puisne judge of the Court of Common Pleas (1695) and the Court of Queen's Bench (1702). DNB. The editors have not been able to identify the case.
29. This also is from an opinion, presumably printed in Peere Williams' Reports, which the editors have not been able to identify. Thomas Parker, first Earl of Macclesfield, was Lord Chief Justice (1710) and Chancellor (1718). DNB.

Docno: ADMS-05-01-02-0006-0006-0003

Author: Adams, John
Date: 1772-10

Adams' Abstract of Title1

Middlesex Superior Court, Cambridge, October 1772
Prescott vs. Priest.
1756. Novr. Deed from Jonas Prescott to Jonas Jnr. of Gift. ¼th.
1749. Aug. 17th. from Jonas to Ebenr. ½ of all my Homestead. Free Liberty to pass and repass by Gates and Barns.
1719. Octr. 8th. from Jonas to Jonas Jnr. All my Right in an old Dwelling House, &c. excepting
1727, 8 Jany. 28. Jonas to Jonas. ½.
{ 272 }
David Goodhue. Jonas Esq. in Possession of Part, and Prescott that is dead of another Part.
1. In JA's hand. Adams Papers, Microfilms, Reel No. 185. Dated by reference to adjacent minutes on MS, Smith v. Child, which was tried sub nom. Child v. Smith at the Cambridge Superior Court Oct. 1772. Min. Bk. 96, SCJ Middlesex, Oct. 1772, N–6. Many of the deeds are in the file of Prescott v. Keep. See text at notes 19–2911–21.

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

Author: Adams, John
Date: 1773-04

Adams' Minutes of the Trial1

Middlesex Superior Court, Charlestown, April 1773
Prescot vs. Priest.
8 Mod. page 115, 16.2 Hardwick's Cases.3
Gilbert's Hist. of Common Pleas.4
Gershorn Fletcher. 55 Years, Prescott the Grandfather of Plaintiffs, have possessed it, and Plaintiffs since and knew they possessed the Grist mill and fulling Mill,6Keep in Possession of the Forge where the Saw mill was.
David Goodhue.7 Priest 30 Jany. 1771. took lever out of Prescotts Gate, and tossed it into the Stream. The Gate shut down. Knows Possession 8 years. Dam broke but cant say, who broke it. Heard Priest say the dam would not stand long, a Week before it was tore up.
Jona. Pierce. Priest told me that the upper Dam would not stand, that it would be tore down—the night before it was done. Plaintiffs have been in Possession. Upper dam built in 1771. Upon Prescotts Land—about 30 or 40 Rods above the other. A benefit to all alike when let out.
Moses Goodhue. Forgot what Priest said, but think he said it would not stand long. The Forge had the longest Use of the Stream, when not Water eno. for all the Mills.
{ 273 }
Nat. Prentice.8 A Lever, Joel kicked off into the Stream. Joel came into Mill without leave, and shut down the Gate.
1. In JA's hand. Adams Papers, Microfilms, Reel No. 185.
2. Lowther et ux. v. Kelly, 8 Mod. 115, 88 Eng. Rep. 91 (K.B. 1722): Husband and wife sued on an indenture. The wife dying, the husband was allowed to proceed under the statute 8 & 9 Will. 3, c. 11 (1697), note 526 below.
3. Judge Cushing's report of the present case (Doc. IV) suggests that the case cited was Middleton v. Croft, Hardw. 395, 95 Eng. Rep. 255 (K.B. 1737): When husband and wife declare in prohibition, and take a partial judgment, and the husband dies before costs allowed, the widow may take her costs upon suggestion of the husband's death.
4. Gilbert, Common Pleas 242–248, treats at length the subject of abatement by the death of parties.
5. Francis Dana, counsel for the Prescotts.
6. Fulling is the process of cleansing and thickening cloth by beating and washing. OED.
7. Goodhue was a clothier (cloth maker) who operated the fulling mill next to the Prescotts' gristmill. Deposition of Nathaniel Prentice, SF 148100.
8. Prentice, who was approximately 15 years old at the time of the events in question, was then David Goodhue's apprentice. His deposition indicates that the Prescotts encouraged him to “shadow” Priest's activities around the dam and the mill. Deposition of Nathaniel Prentice, SF 148100.

Docno: ADMS-05-01-02-0006-0006-0005

Author: Cushing, William
Date: 1773-04

Cushing's Report of the Trial1

Middlesex Superior Court, Charlestown, April 1773
Middlesex—Charlestown. April Term 1773.
Prescott et al plaintiffs vs. Priest.
Trespass quare clausum fregit—Defendant pleads in abatement that one of the plaintiffs died since the last continuance. Demurer and joinder.
Mr. Adams in support of the plea cited Gilb. prac. Com. pleas. 242. 2482—Hardwicke's cases 395.3
Dana for plaintiff—cites 8 Mod. 115. 116.4—Bac. abr. Abatement. F. p. 7.5
Per Cur[iam] Oliver, C.J., Hutchinson, Ropes and Cushing, J. The action survives; and by 8 & 9 W. 3., Cap. 11. “where the action survives, and one of the plaintiffs dies—it shall go on and not abate.”6 Respondeas ouster awarded unâ voce.7
2. Note 424 above.
3. Note 413 above.
4. Note 402 above.
5. 1 Bacon, Abridgment 7: “(F) Of Abatement by the Death of the Parties. The general Rule to be observed in this Case is, that where the Death of any Party happens, and yet the Plea is in the same Condition as if such Party were living, there such Death makes no Alteration or Abatement of the Writ. A difference has been held with Respect to Real Actions, where there are several Plaintiffs, and there is Summons and Severance (as there is in most Real Actions) that in these the Death of one of the Parties abates the Writ, but not in Personal or Mix'd Actions, where one intire Thing is to be recovered.” The word “Severance” refers to the right of several defendants to answer severally. See Stephen, Pleading 270.
6. 8 & 9 Will. 3, c. 11, §7 (1697): “And be it ... enacted ... That if there be two or more plaintiffs or defendants, and one or more of them should die, if the cause of such action shall survive to the surviving plaintiff or plaintiffs, or against the surviving defendant or defendants, the writ or action shall not be thereby abated; but such death being suggested upon the record, the action shall proceed at the suit of the surviving plaintiff or plaintiffs against the surviving defendant or defendants.”
7. That is, the court unanimously ruled that defendant would file a new answer, or “answer over.”

Docno: ADMS-05-01-02-0006-0007-0001

Editorial Note

Jonathan Wilkins owned a pasture and apple orchard on Mill Brook in Middleton, near the Great Pond. On 10 March 1762, Timothy Fuller erected a dam which on 28 March 1762 and thereafter at intervals until February 1770 caused the stream to overflow part of Wilkins' land, allegedly damaging his trees and spoiling his grass. For unexplained reasons, Wilkins waited until 1771 before bringing an action of trespass on the case for the damage. Apparently he was then suing for damage to land which he no longer owned. The writ alleged that Wilkins “on the twenty-eighth Day of February A.D. 1770 was and for nine years then last past had been seized in his Demesne as of Fee” of the land in question.1 In the Wetmore Notes under the heading “Issues November Term Salem 1771” appears the entry “Wilkins v. Fuller—case for flowing before sale,” that is, before Wilkins sold the property.2 That this was the situation is confirmed by the statement of Samuel Porter, counsel for Fuller, that “Trespass could not be maintained because the Plaintiff not now owner of the land” (Document II).
It is not clear that Adams was ever of counsel. He does not appear in the earliest phase of the case, Ipswich Inferior Court, March 1771, where the jury found for Wilkins £6 damages and costs.3 Accurate dating of Adams' minutes (Document II) has been difficult. In the manuscript, it appears on the reverse of a copy of the writ in Hoyt v. Brown, a case which was entered at the March 1771 Ipswich Inferior Court, and continued term by term to the July 1772 Salem Inferior Court, when the matter was determined on a sham demurrer.4 It is therefore possible that Document II dates from the March 1771 Ipswich Inferior Court. The docu• { 275 } mentary evidence, however, suggests a later date, either in the June 1771 Ipswich Superior Court, to which both parties appealed, or before referees later. At the June 1771 sitting, the court continued the matter to the Salem Superior Court, November 1771, at which time the case was sent to referees. Mention of the jury view in June 1771 (Document I) suggests that the case may have been partially tried at the Superior Court, although the Minute Book does not so indicate; and indeed current English practice permitted the taking of a view before the trial jury was even impanelled.5
But the most probable attribution of Document II is the referees' hearing, the likeliest forum for the sort of testimony there included. One of the original referees having died, a substitute was appointed at the June 1772 Ipswich Superior Court; the report itself is dated 2 July 1772.6
The Minute Book contains no mention of counsel, but Document II suggests that Nathaniel Sergeant and Porter appeared for Fuller, with John Lowell for Wilkins. Adams, too, may have appeared for Wilkins. In November 1772, the court read and accepted the referees' report that “there is nothing due from either Party to the other.”7
Elias Smith had also commenced an action against Fuller alleging straight trespass rather than case,8 and claiming that Fuller had built a dam on Smith's land in March 1766, “flowing” two and a half of Smith's acres. There are no minutes in Adams' hand, except the solitary title “Smith v. Fuller” in the booklet containing cases from the Ipswich Superior Court, June 1771.9 The Wetmore Notes, however, contain what appear to be minutes of certain legal points which arose at the trial in the latter term (Document III). Apparently, plaintiff tried to introduce evidence of the actual building of the dam in 1762; defendant objected { 276 } on two grounds, first, that the dam was not built during the “continuando,” or period of continuing flowage alleged in the writ, and, second, that the applicable statute of limitations barred such evidence. From Wetmore's minutes it appears that the court sustained both objections.
The action was initially commenced at the Salem Inferior Court, July 1770, Fuller winning a verdict and costs. The case was appealed to the Salem Superior Court, November 1770 (where Adams first entered the litigation as counsel for Smith, associated with Jonathan Sewall; John Lowell and Samuel Porter appeared for Fuller), and was continued to Ipswich Superior Court, June 1771, where it was at least partly tried before a juror was withdrawn,10 probably as a result of the court's decision on the evidence questions. At the November 1771 Salem Superior Court, the case was retried, and the jury returned a verdict for Smith for £5 and £30 16s. 7d. costs.11 Fuller sought review, and the matter dragged on until 1778, when a final entry, “neither party appears,” closed the litigation.12
1. SF 132243.
2. See Wetmore Notes, No. 2, Adams Papers, Microfilms, Reel No. 184. If the quoted phrase means instead that the flowing occurred before a sale to Wilkins in 1770, his declaration may reflect an effort to evade the familiar common-law rule that a person who came to an established nuisance had no cause of action. See 2 Blackstone, Commentaries *402–403; 7 Holdsworth, History of English Law 331. Such a reading seems unlikely, since proof of the title pleaded was necessary to maintain the action. See Shipman, Common Law Pleading 209–210. A deed of the property to Wilkins was put in evidence (Doc. II) but it has not survived in the file of the case.
3. SF 132243.
4. SF 132296. An appeal was taken, but not prosecuted, at the Nov. 1772 Salem Superior Court.
5. Min. Bk. 93, SCJ Ipswich, June 1771, N–2, N–3; Salem, Nov. 1771, C–12, C–13. On the English practice, see Buller, Nisi Prius 300–301: “[W]here it shall appear to the Court to be proper the Jury should have a View, the Court may order special Writs of Distringas or Habeas Corpora to issue, by which the Sheriff shall be commanded to have 6 out of the first 12 of the Jurors named in such Writs, or some greater Number of them, at the Place in Question some convenient Time before the Trial, who shall there have the Matters in Question shewed to them by Persons appointed by the Court.... [W]here a View shall be allowed, 6 of the Jurors who shall be named in such Panel, or more who shall be mutually assented to by the Parties, or in Case of their Disagreement, by the proper Officer of the Court, shall have the View, and shall be first sworn to try the Cause before, drawing out of the Box.” For the Province statute, see Act of 28 June 1746, 3 A&R 300, periodically renewed.
6. See the rule and report in SF 132243.
7. Min. Bk. 93, SCJ Salem, Nov. 1772, C–7, C–8; SF 132243.
8. For the classic formulation of the distinction between trespass for an immediate injury and case for a consequential injury, see 1 Chitty, Pleading 126: “[W]here the damage or injury ensued not directly from the act complained of, it is termed consequential or mediate, and cannot amount to a trespass.... So if a person pour water on my land, the injury is immediate; but if he stop up a watercourse on his own land; or if he place a spout on his own building, in consequence of which water afterwards runs therefrom into my land, the injury is consequential.” See also Reynolds v. Clarke, 2 Ld. Raym. 1399, 92 Eng. Rep. 410 (K.B. 1726).
9. Wetmore Notes, No. 2, Adams Papers, Microfilms, Reel No. 184.
10. Min. Bk. 93, SCJ Salem, Nov. 1770, N–8; SCJ Ipswich, June 1771, C—14. SF 132061. On withdrawing a juror, see No. 10, note 7.
11. Under the heading “Issues November Term Salem 1771” in the Wetmore Notes appears the entry: “Smith v. Fuller. Trespass for Flowing Land.” See SCJ Rec. 1771, fol. 194.
12. Min. Bk. 102, SCJ Ipswich, June 1774, N–1; SCJ Salem, Nov. 1777, C—10; SCJ Salem, Nov. 1778, C—7. SCJ Rec. 1778–1780, fol. 47.

Docno: ADMS-05-01-02-0006-0007-0002

Author: Wetmore, William
Date: 1771-06

Wetmore's Minutes of the Wilkins Trial1

Essex Superior Court, Ipswich, June 1771
June [1771].
Wilkins v. Fuller. Trespass on the case for flowing land &c. Motion first day of the term for view by Jury and 4 of them sent. Officer and of each side sent.
1. Wetmore Notes, No. 2, Adams Papers, Microfilms, Reel No. 184. This minute appears in the MS several pages after the minutes of Smith v. Fuller, Doc. III below.

Docno: ADMS-05-01-02-0006-0007-0003

Author: Adams, John
Date: 1772-07

Adams' Minutes of the Referees' Hearing in Wilkins' Suit1

Middleton, July 1772
Wilkins. vs. Fuller
Deed. Wm. Fuller to Jona. Wilkins.
Archelaus Fuller. Known the Place there 30 years. Wilkins mowed the Land, 1 or 2 Years. Orchard, runs down to the Edge of the Brook. { 277 } The Water used to help the Land. But Fullers Dam and Mill there, immediately flowed this Land of Wilkins's and flowd over an high Way that we used to pass to Meeting. It flowd up into Wilkins's an Acre and ½ and round several Apple Trees—8 or 10. The Ice would tear the Turffs off, and threw it in Heaps and another sort of Grass and flaggs2 came in the room of it. A fine Apple tree, was killd by it, as I suppose. 3 Barrells of Cyder a Year. They cutt a 2d Crop, of good Hay before the flowage. There is a Load of Hay odds,3 worth 9 or 10 Pounds on an Average. The ground when the Water is drawn off is black as a Hat, and a bad Smell the latter End of May. No Mill there since my Remembrance.
Andrew Fuller. 8 or 9 Years since Fuller erected his Mill. Blue Grass before and the want of fresh Grass since. Apple trees, as good bearing Trees as ever known in an orchard. A Number of Trees gone to decay. A Sound Tree, that died. A large Body of Ice froze round it, and as the Water rose and fell the Ice rubbed the Bark off in several Places. The trees are all upon the decay, and now of little Value. Grass not half so good, as it was. Wilkins got about 2 Load, a Year. I suppose the Trees have been planted 40 Years. I remember before a[n]y of them Trees bore [ . . . ] of apples.
Jacob Smith. Very good Grass better than 2 Load at 1st and 2d Crop. It has been flowd every Season, better than an Acre. The year before last and every Year before, I mowd it. The 1st Year after it was flowd there was little or no Hay, and very little at any Year since, not a Load. Imagine the Water kill'd the Trees. Bore 2 Barrells a Year upon an Average. A Load we put round the Edges.
Robert Pierce. The Ice tore up the Ground, about the Roots and the Tree died soon. The large Tree had the bark torn off, quite thro.
2 Witnesses about Cyder, Apples, Trees &c.
Porter. Trespass could not be maintained because the Plaintiff not now owner of the Land. Credibility of Witnesses &c.
Mr. Andrews. 69 years ago I helpd draw some Timber to that Mill dam. The Mill sawd Boards for our Meeting House and that is all I know. No Mill there these 50 or 60 years.
Mr. Chandler. It does not look as if any Thing grew on it.
Saml. Cheever.
Rob. Indian. Damages Land, to flow and not keep up the Pond all Winter.
{ 278 }
Bart. Buxton. ½ an Acre flowd now [ . . . ] as dam up. And the flowing the ½ Acre does more hurt than flowing the whole would all Winter.
Thos. Hart. About an Acre flowd.
Andrew Fuller. The freshit has removd a stick and Gravel and made a stop.
Porter. Persons interested not to be credited, and the most credible Witnesses to be believd.
Trees tarr'd. Denyd it.
Law regards not Trifles.
Serjeant. Uncertainty of the Witnesses about the Number of Years. Not the stench to Mr. Smith nor the damage to the High Way.
1st. as to damnifying the Grass. It may be attributed to the upper Mill. Jam4 Tree, overated.
C[ol.?] Fuller set it at 2 dollars a Year.
1. In JA's hand. Adams Papers, Microfilms, Reel No. 185.
2. Presumably the marsh plant known as cattail.
3. “Oddments” or “more or less” are equally valid interpretations.
4. MS is fairly clear, but the meaning remains obscure.

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.

Docno: ADMS-05-01-02-0007-0001-0001

Editorial Note

At twenty-four Adams could ask, “But Quere, if Dissonance of Dispositions is a sufficient Reason [for allowing a divorce]? This may be known, if sufficient Caution is taken beforehand.”1 Some twelve years later as counsel for Abigail Broadstreet in a divorce case involving domestic discord of the type dear to the readers of women's magazines today, he may well have had cause to ponder this proposition again.
Abigail Fuller had married Dr. Joseph Broadstreet of Topsfield in February 1770. Although Abigail had recently bought a small farm in nearby Middleton, the town in which her family lived, the couple, apparently for financial reasons, chose to move in with her brother Jacob. Within a few months Broadstreet became extremely restive, proclaiming to all who cared to hear that he had made a poor choice of wife in marrying a woman with no fortune but some unprofitable real estate. He said that “he was a damned fool for having of her and that he should rather have married a Negro if She had money.”2 Such pronouncements were accompanied by frequent threats to sell all that Abigail had and to depart with the proceeds to a more desirable location.
By the fall of 1770 Abigail was well along with child. Her mother, hearing that Broadstreet was “very uneasy” with his wife and still threatening to leave her, summoned him to the matriarchal presence. There followed a stormy scene in which she tried to persuade her son-in-law to stay with his wife “in her difficult circumstances, she being very unwell and unfit to care for herself.” Pleas and offers of assistance were of no avail. All that Broadstreet would say was “that he was a fool for having her and that he would not tarry with her for he had much rather be in the Mines.”3
Perhaps in reaction to this interview, Broadstreet then left home. He soon returned, however, and, repenting past excesses and promising future good behavior, persuaded Abigail to move with him into her own house, about half a mile distant. Almost at once he began to threaten abandonment again. According to Abigail's sister Mehitabel, who helped her to move, “He appeared very ill-natured, cursed his wife and cursed himself { 281 } and behaved like a man in distraction, wishing that he was in Salem Gaol or in the Spanish Mines, or in the worst place in the world other than there, and screaming and hallowing and slapping his hands together.”4 There were moments of respite, but on the whole Broadstreet's unsettled and unsettling conduct worsened during the next two weeks. He would waken Abigail in the middle of the night, ranting of money or screaming that the devil was coming, so that periodically she was forced to take refuge with her mother, who also lived nearby, just to get a night's sleep. Finally, early in December, Broadstreet departed once more, taking his possessions and vowing never to see his wife again.
After waiting a few days for her husband's return, Abigail took up permanent residence at her mother's in order to obtain the bare necessities of existence. Here, Broadstreet, accompanied by friends who sought to reunite the couple, visited her on several occasions. In these interviews she conceded that he had not harmed her, other than by his nocturnal out-bursts and perhaps a certain overinsistence on his connubial prerogatives. She remained adamant in her refusal to rejoin him, however, at least until winter and her pregnancy had run their courses, for she feared that an irremediable lack of funds sufficient to maintain Broadstreet in his desired style would quickly reawaken all the old dissatisfaction and lead to a resumption of his rantings. Without some security for his good behavior, which was not forthcoming, she “durst not [return], for he behaved like a madman and ... he would infallibly be the death of her: not in laying violent hands upon her, but by worrying and frighting her and hindering her from sleep.”5
On several occasions Abigail agreed to go to some other location, away from her family, which Broadstreet saw as the evil influence upon her. His efforts to find a place for them to live were inconclusive, however, and each meeting seemed to end on a similar note. Broadstreet would formally invite his wife to come and live with him again, but in the same breath aver that he did not care if she ever did. In March 1771 Abigail's child was born. Thereafter, her husband grew increasingly embittered. In calmer moments he blamed the separation on family influence, but more and more frequently he stated that he wished wife and child were dead and expressed his seeming hatred of them in a series of drastic epithets. It was reported that in February he had rented Abigail's house, sold off her hay, and “advertised” her—that is, publicly disclaimed responsibility for her debts.
As her strength returned, Abigail sought a divorce in a proceeding before the Governor and Council, who had jurisdiction of such questions under a Province Act of 1692.6 In England, questions of divorce were within the competence of the ecclesiastical courts, which applied the canon law. These courts could decree an absolute divorce, a vinculo matrimonii (from the bonds of matrimony), only when the marriage itself { 282 } was a nullity because of such defects as consanguinity or impotence. In such a case the parties were free to remarry. When the grounds were adultery, cruelty, or the like, the marriage itself was held valid and unbreakable, and the ecclesiastical courts would grant a divorce a mensa et thoro (from bed and board). This was in effect only a decree of separation and maintenance, each party being barred from remarriage during the other's lifetime. If the aggrieved party in a divorce a mensa wished further relief, he or she might, at least in a case where the grounds had been adultery, apply to the House of Lords, which would, upon appropriate investigation, order the marriage dissolved, permitting remarriage.7
In Massachusetts, because of the power of the Governor and Council, the location of jurisdiction to grant divorces a vinculo was ambiguous. The Court of Assistants in the old Colony seems to have granted this relief in cases of desertion, bigamy, and adultery, acting in its judicial capacity;8 but after 1692 the Governor and Council did not follow suit. From 1755 to 1757 the General Court took to itself the powers of the House of Lords, granting divorces a vinculo in cases in which the Governor and Council had previously granted decrees a mensa9 It was perhaps in response to these proceedings that Governor Pownall in a 1760 message to the Council raised the question whether that body had jurisdiction of divorces a vinculo as a civil, rather than a spiritual, court under the Province Act of 1692. “If not,” the Governor continued, “the Doubt then remains whether this Power lies with the Legislature of this Province or only with the Parliament of Great Brittain.”10 The Board of Trade had referred this question of legislative power to the Privy Council, but, although hearings were scheduled in 1759, none of the private acts granting divorces seems to have been disallowed.11 Perhaps through Pownall's influence, however, the General Court granted no further divorces, and the Divorce Records of the Governor and Council show that the latter body thereafter issued numerous decrees a vinculo in cases of adultery.12 The relief which in { 283 } England could be had only by the petitioner who could afford to go to the House of Lords, was thus available in Massachusetts in the ordinary course.
Abigail's libel, filed by Jonathan Sewall in July 1771, alleged Broad-street's departure in December of the preceding year, his failure to support his wife since that time, and his constantly expressed threats to her fortune and wishes for her death. It concluded with a prayer “that by your Excellency's and Honors' Decree she may be divorced from Bed and Board with the said Joseph and thereby be intitled to the separate and sole use and improvement of her own Estate for the maintenance of herself and Child.” Broadstreet's answer, propounded by Josiah Quincy Jr., denied Abigail's allegations and attributed the separation to the efforts of “dark and mercenary Enemies to his household,” who by “insinuating arts withdrew the affections of his Wife.” Two justices of the peace were assigned to take testimony for both sides, and on 17 October, before the Governor and Council, the depositions were read and the parties heard.13
Adams' notes of the proceedings, printed below, indicate that he argued Abigail's case, probably with Sewall. The authorities which he collected show that the canon law, as applied in the ecclesiastical courts in England, was an important source of the Massachusetts law of divorce. He thus limited himself to questions concerning the divorce a mensa as the canon law defined it, seeking to establish that desertion and cruelty were grounds, and were present in this case.
Under canon law the husband could be required to pay alimony after a divorce from bed and board, the theory being that, since the marriage still existed, he was merely continuing to perform the duty of support which he would have had in normal course. Since the wife by her conduct could forfeit alimony, Adams also endeavored to lay the groundwork for an argument that Abigail had not done so in this case, despite her coolness toward Broadstreet's attempts at reconciliation. The arguments were apparently successful on all counts, for with the sole dissent of Governor Hutchinson, who did not agree “that there was a sufficient cause for a separation,” the Council decreed a divorce from bed and board. Abigail was awarded alimony of £25 per year, payable in quarterly installments, plus the costs of the proceedings.14
That the separation which Abigail sought ensued seems clear. What is less clear is her success in obtaining alimony. In 1774 she was forced to { 284 } petition the Council again, because Broadstreet had paid her nothing. In accordance with the statutory procedure for the enforcement of its decrees, the Council ordered a warrant to issue for Broadstreet's arrest.15 He could be held in prison until he chose to comply. Whether he was actually taken, and whether the pains of incarceration eventually triumphed over his enmity toward Abigail do not appear in the record.
1. Diary, Summer 1759. 1 JA, Diary and Autobiography111.
2. See the deposition of Mehitabel Fuller, 21 Sept. 1771, in the file. SF 129762. The account which follows is pieced together from numerous depositions found there.
3. Deposition of Abigail Fuller, widow, 21 Sept. 1771. SF 129762.
4. Deposition of Mehitabel Fuller, note 2 above.
5. Deposition of Archelaus Fuller, 21 Sept. 1771. SF 129762.
6. Act of 3 Nov. 1692, c. 25, §4, 1 A&R 61.
7. See Richard Burn, Ecclesiastical Law, 2:428–431 (London, 2d edn., 1767); 1 Holdsworth, History of English Law 622–624; 10 id. at 608; 11 id. at 622–623; 12 id. at 685–686. Compare Quincy, Reports (Appendix) 577. See also No. 23, note 5.
8. See George L. Haskins, Law and Authority in Early Massachusetts 195 (N.Y., 1960); Petition of Mary Sanders (1674), 1 Records of the Court of Assistants 1630–1692 30 (Boston, ed. John Noble, 1901); Petition of Hope Ambrose (1678), id. at 127; Petition of Susannah Goodwin (1680), id. at 168.
9. See Act of 10 Jan. 1755, No. 81, 6 A&R 165; Act of 10 June 1755, No. 82, id. at 169; Act of 15 April 1756, No. 83, id. at 170; Act of 18 April 1757, No. 84, id. at 173; Act of 22 April 1757, No. 85, id. at 174; Act of 14 June 1757, No. 86, id. at 177.
10. Supreme Court Probate Rec. 1760–1830, fol. 1, printed in Quincy, Reports (Appendix) 577.
11. Preface, 6 A&R v–vi; Smith, Appeals to the Privy Council 582–585.
12. See, for example, No. 23. There were at least thirty-five divorce proceedings in Massachusetts between 1760 and 1775, of which twenty were decrees a vinculo for adultery; five were annulments for prior marriages; and seven were divorces from bed and board for cruelty and the like; in at least two cases a decree was denied for insufficient evidence. Divorce Recs. In the latter category was Shank v. Shank (1772), in which a divorce a vinculo sought for adultery was denied on evidentiary grounds. The libel in the file is in JA's hand. SF 129766. The first Massachusetts Divorce Act after the Revolution empowered the Supreme Judicial Court to grant divorces a vinculo, not only on the traditional canon-law grounds, but for bigamy and adultery as well, thus adopting what seems to have been the pre-Revolutionary practice. The court could also decree divorce a mensa for extreme cruelty. Mass. Acts 1785, c. 64, §3 (1786).
13. Divorce Recs., fols. 68–70. See the libel and answer in SF 129762. The Commission to Andrew Oliver Jr, and William Brown, dated 12 Sept. 1771, and a deposition of Daniel Bixby, 5 Oct. 1771, are in MHi:Photostats; for other depositions, see notes 2–52, 3, 4, and 5 above; note 2712 below.
14. See Divorce Recs., fols. 68–70. JA received a fee of 48s. JA, Office Book, MQA.
15. See her petition in SF 129762. The statutory authority is that cited by JA, note 249 below.

Docno: ADMS-05-01-02-0007-0001-0002

Author: Adams, John
Date: 1771-10-17

Adams' Notes of Authorities and Minutes of the Hearing1

Governor and Council, Boston, 17 October 1771
Abigail Broadstreet vs. Joseph Broadstreet
Godolphin's Repertorium Canonicum 507.2
“Wife libelled Husband in the Ecclesiastical Court for Alimony because he beat her so as she could not live with him. A Prohibition was prayed, but denied by the Court; and it was held in this Case, that the Wife might have the Peace vs. her Husband for unreasonable Correction.” Sir Thos. Simmonds Case. Mores Rep.3
508. §13. Definition of Alimony, and Elopement.4
509. §14. Vid.5
{ 285 }
510. §16.6
511. §18.7
Prov. Law, page 59, 60. An Act to prevent incestuous Marriages.8
Prov. Law. 8 G. 2, c. 10, page 371. Impowered to inforce their decrees by Imprisonment.9
Burn. Ecc. Law. Vol. 2. 430. 431.10
Woods, civ. Law. 124. middle11
Drs. Wit[nesse]s.12
J. Wilkins
E. Knight
[J.] Town.
1. In JA's hand. Adams Papers, Microfilms, Reel No. 185.
2. John Godolphin, Repertorium Canonicum 507 (London, 3d edn., 1687).
3. This notation appears in the margin in Godolphin, Repertorium Canonicum 507, cited in note 172 above. JA's quote from Godolphin is in turn an almost verbatim borrowing by Godolphin of the report of “Sir Tho. Simonds Case” in An Exact Abridgment in English of the Cases Reported by Sr. Francis More Kt. 263 (London, ed. Hughes, 1665). The original report of the case is found sub nom. Sir Tho. Seymours Case, in Moore K.B. 874, 72 Eng. Rep. 966 (K.B. undated).
4. That is, Godolphin, Repertorium Canonicum 508. The definitions are “Alimony .... that proportion of the Husbands Estate, which the Wife sues in the Ecclesiastical Court, to have allowed her for present subsistence and livelyhood, according to Law, upon any such separation from her Husband, as is not caused by her own elopement or Adultery.... Elopement ... that voluntary departure of a Wife from her Husband to live with an Adulterer.”
5. Godolphin, Repertorium Canonicum 509. A qualification of the passage in note 4note 19 above, to the effect that, although in most cases of separation not occasioned by elopement, adultery, or a legal impediment to marriage, the husband is held to pay alimony, he need not pay if the wife departs of her own accord through no default of his, even where she is not chargeable with adultery. When the reason of her departure is some default in the husband, such as cruelty, she is then entitled to alimony, if she is blameless. If the wife repents of any flight save elopement, adultery, or a legal impediment, the husband must take her back or pay alimony. Conversely, where a blameless wife has fled, if the husband repents and offers security that will assure his good behavior, he need not pay alimony if his wife then refuses to return.
6. Godolphin, Repertorium Canonicum 510, setting out John Owen's Case, Hetley 69, 124 Eng. Rep. 349 (C.P. undated) (Prohibition granted to the Council of the Marches of Wales, which had seized Owen and sequestered his property for non-payment of a decree of maintenance made in a case where the husband was living apart by the Bishop of Bangor and confirmed in the Council. Semble, the only remedy for disobedience of an ecclesiastical decree is excommunication). This case and the following one were apparently cited by JA as examples of the action of the Ecclesiastical Courts, rather than for the precise holdings on the prohibitions.
7. Godolphin, Repertorium Canonicum 511–512, setting out Cloborn v. Cloborn (cited incorrectly as Clobery v. Clobery), Hetley 149, 124 Eng. Rep. 414 (C.P. 1631) (Prohibition to the Ecclesiastical Court refused in award of alimony for cruelty including physical violence and insults, where the husband had merely denied the allegations. His grounds for the prohibition were that he had chastised his wife for reasonable cause and that there had been a subsequent reconciliation. The court held that it could not “examine what is cruelty,” and that moreover the actions here were cruelty. If the husband had pleaded some justification and it had been refused, then the prohibition might lie).
8. Acts and Laws, Of His Majesty's Province of the Massachusetts Bay in New-England 59–60 (Boston, 1759); Act of 19 June 1695, c. 2, 1 A&R 208. Section 3 provides in part that “it shall be in the power of the justices of the superiour court of judicature to assign unto any women so separated [i.e. divorced or marriage annulled] such reasonable part of the estate of her late husband as in their discretion the circumstances of the estate may admit, not exceeding one-third part thereof.” Id. at 209. For a case of JA's illustrating the operation of the statute, see the petition of Sarah Griffin (Gould), SF 91716; Min. Bk. 98, SCJ Suffolk, Aug. 1773, N–47. This arose from Gould v. Gould, SF 129772; Divorce Recs., fols. 78–79.
9. Acts and Laws 371–372 (1759); Act of Jan. 1755, c. 15, 3 A&R 782. The Act provides that upon refusal or neglect of any person to obey the decree of Governor and Council in a controversy concerning marriage and divorce, the secretary of the Province, upon their order, may issue a warrant for the arrest and commitment to prison of that person without bail until he complies with the decree.
10. 2 Burn, Ecclesiastical Law 430–431. The passage deals with the nature and incidents of divorce a mensa et thoro. See text at note 7 above.
11. Wood, New Institute of the Civil Law 124, a passage setting forth the grounds of divorce under the civil law, which include irreconcilable hatred, intolerable cruelty, and “when one party shall unjustly forsake and live apart from the other. ”Wood then states that the law of England, following the canon law, will not permit divorce from the bonds of matrimony, but does not raise the question of divorce from bed and board.
12. That is, evidence presented on behalf of Dr. Broadstreet. See note 13 above. See the depositions of Joshua Wilkins, Enos Knight, and Jonathan Town in SF 129762. Wilkins testified that the hay sold by Broadstreet was not actually Abigail's. The other two depositions describe the Jan. 1771 meetings between the parties in terms favorable to Broadstreet.

Docno: ADMS-05-01-02-0007-0002-0001

Editorial Note

Today we would probably call this action tort for loss of consortium by seduction. In 18th-century England and Massachusetts, the cuckold's remedy was an action of trespass for an assault on his wife, better known as “criminal conversation,” or just “crim. con.”1 Adams represented the defendant Little in the Inferior Court, and the testimony recorded in his minute fairly states the story. Further details emerge from the file of the divorce suit which Dougherty was prosecuting simultaneously with his action at law.2
Dissatisfied with the £60 verdict in the Inferior Court, Dougherty appealed to the April 1768 Charlestown Superior Court; there, with Adams no longer representing Little, the jury awarded Dougherty £400 and £27 4s. 9d. costs.3 Meanwhile the grand jury indicted Mrs. Dougherty and Little twice, once for adultery and once for lewd, lascivious, and wanton behavior.4 Finally, the Governor and Council, sitting in exercise of their exclusive jurisdiction in divorce, on 15 June 1768 granted Dougherty an uncontested divorce a vinculo, a copy of the Superior Court judgment being a part of the evidence “by which it appears that the said James [Dougherty] hath fully proved his libel.”5
1. F. Buller, Introduction to the Law relative to Trials at Nisi Prius 26–28 (London, 1772); 3 Bacon, Abridgment 581.
“The proponent doth alledge that in August A.D. 1764 he sailed for the Island of Newfoundland and that he continued there 'till the month of December last.... That when your proponent returned from the said Island of Newfoundland, to his great grief he found his said Wife Mary big with Child, and has great reason to suspect that the said Thomas Little is the Father thereof your proponent not having cohabited but been absent from his said Wife for the space of three years last past.” The libel was filed 26 Feb. 1768. SF 129750.
See also note 105 below. For Dougherty's disclaimer of his wife's debts, dated 24 Dec. 1767, see Boston Gazette, 7 March 1768, p. 4, col. 3.
3. Min. Bk. 88, SCJ Charlestown, April 1768, N–13; Rec. 1768–1769, fols. 163–164; SF 147615.
4. SF 147605. No record of the disposition of Mrs. Dougherty's case seems to have survived. Little's case was called at the Cambridge Superior Court, Oct. 1768, but he defaulted and was fined £200 and costs. Min. Bk. 88, SCJ Cambridge, Oct. 1768, N–15.
5. Divorce Recs. 45–48 (1768). See also Boston Gazette, 25 April 1768, p. 3, col. 2. As to the divorce jurisdiction see No. 22. In England in a proceeding for divorce a vinculo in the House of Lords (No. 22, text at note 7), the applicant had to establish that he or she not only had obtained a divorce a mensa in the ecclesiastical courts but had recovered for criminal conversation at law. 1 Holdsworth, History of English Law 623.

Docno: ADMS-05-01-02-0007-0002-0002

Author: Adams, John
Date: 1768-03

Adams' Minutes of the Trial1

Middlesex Inferior Court, Charlestown, March 1768
Dougherty vs. Little
Dougherty at Newfoundland, 3 Years, Little breakfasted dined suppd and lodgd there. Lodgd with her, got her with Child, and was seen in the Act of Copulation with her.
Revd. Whitney. Rode to Meeting with her.
Thos. Nicholls. Frequently there. Candle put out and two Persons went out, and Little and she came in.
Wm. Little. Was left with the Care of Mrs. Dougherty and got his Brother to bring her up from Charlestown and desired his Brother to take some Care of her and her Negro when I was sick. Talk about the Parson. Am not knowing to her being with Child. The Woman poorly at Meeting. But I know not the Cause. The last Time I saw her it did appear to me, that she was belyed. He always denyd it to me.
Mrs. Little. I thought her with Child. Have not seen her since.
Thos. Trowbridge. He told me that he could have as good a Lodging with Mrs. Dougherty, as I should have with that Woman. Hints. Infirmations.3
Chaise coming from Boston.
Mrs. Nicholls. Never saw any Indecency, any unhansum Carriage. Seen his Horse stand there. Common fame, that he used to frequent the House. Not common Report that he staid o Nights. Common Report that she with Child. I thought she was with Child 7 months gone, not sure she was.
Mrs. Nicholls lodged with her. I discoverd4 that I thought she was pregnant. It seemd like a living Child.
Negro's. Riding a trotting Horse. Into Bed. Saw em twice in Bed. Moonlight went thro the Room once.5
{ 288 }
Dinah. Saw the same. Man upon the Woman.
Children. Boy. Saw em on the Bed, with Arms round each others Necks.
Actually with Child. Mrs. Little and Mrs. Nicholls.
[ . . . ]. And carnally knew.
1. In JA's hand. Adams Papers, Microfilms, Reel No. 185.
2. Jonathan Sewall, Dougherty's counsel. See Inferior Court record, SF 147615.
3. The MS is clear. JA may have meant “Informations,” or perhaps he actually intended “Infirmations,” “the action of weakening or invalidating (evidence).” OED.
4. That is, disclosed.
5. This is probably the testimony of one Jacko, whose deposition in the divorce proceedings, dated 6 May 1768, is as follows:
“Jacko twenty-two years of age Testifys and says that In the winter Season in the year 1767 he Came to the house of Mr. James Dougherty in Sherly District and that Soon after he Came there, Thos. Little of said Sherly Came to said Doughertys house Mary the wife of said Dougherty being and liveing at said house <about a fortnight after he said Jacko Came> said Little Came and put his horse into the Chase and road with said Mary and used freequantly so to Do and also Breakfast Dine and Drink Tea with the said Mary, in the <month of> beginning of the Summer in the year 1767 the said Jacko says he saw said Little and said Mary <Standing against said fence> standing by the fence said Mary, Back to the fence said Littles Belly to her Belly, Some time after said Little Came to said Doughertys house and in the Evening said Little sent him said Jacko to said Littles house with his horse and Told him he must lodge there that night, between nine and ten o Clock that same Evening he said Jacko Came back from said Littles house said Little asked why he Came back, he answered he would not lye out of the house that night, said Little Bid the people in the house a Good night and went out of the house, said Jacko went out after him, then said Little went round to another Doar where said Mary met said Little and opened the Doar with a Candle in her hand and let him said Little in, and Shut up the house, which obliged said Jacko to go in at a Celler window, and when he Came up into the Entry way he said Jacko Saw said Littles Cloaths lye on the floar by said Marys bed, and then he said Jacko went up Chamber over her said Marys Bedroom, there being only some Boards thrown Down loose for a floar, there being Considerable Distances between the Boards saw said Little and said Mary in Bed together (the moon shining that nite), a few nights afterwards (the moon shining) the said Jacko being in said Chamber he heard Some body Come into the said Marys Bedroom before Discribed, she then being in Bed, Saw said Little In the Bed with said Mary, and upon her, and the Bed Cloaths in Constant motion. Some time after said Little Came to said Doughertys house aforesaid in the Evening the said Jacko being then in bed, and Called him up and asked him where said Mary was, and said Mary and said Little went out of the house and Tarryd about one Quarter of an hour, then said Mary Came in, (and went to bed) and Early next morning found said Little in said house, and said Little Told him said Jacko that he Came over to ask said Mary whether she wanted his plow that Day. Some time after said Jacko took a lite in the Evening to go Down Seller to Draw Drink, and saw in the Entry said Mary <leaning over> setting against a Chest, and said Little on his Knees <... her> before her.”
[signed] Jacko

Docno: ADMS-05-01-02-0008-0001-0001

Editorial Note

As in England, the Massachusetts justices of the peace, singly and in their joint capacity as the Court of General Sessions of the Peace for each county, formed a kind of all-purpose administrative tribunal with jurisdiction in a wide variety of local government questions. Matters within their power included tavern licensing; the construction, repair, and use of highways; militia service; assessment and collection of taxes; regulation of weights and measures, as well as the quality of food and other products; shipbuilding; land use; violation of the Sabbath; support of the ministry and schools; and welfare. In the last category were two important problems which produced substantial amounts of litigation—the settlement and removal of paupers, and the support of illegitimate children. John Adams had a number of cases in both of these fields, which demonstrate the early operation of administrative law in Massachusetts.1 The present case and Nos. 25–2725, 26, and 27 concern paupers. Nos. 28–3028, 29, and 30 are examples of bastardy proceedings, as they were called.
The poor relief system rested on the principle that a town was responsible for the support of all indigent persons having a “settlement” within it. Under statutes in force until 1767 a pauper gained a settlement if he remained within a town for twelve months without being “warned” by the selectmen to depart. Once the pauper had been warned, he could be removed to another town by the constable under the warrant of a justice of the peace. Litigation over those provisions generally concerned the contention of the town to which a pauper had been removed that it should not be charged with his keep. The town would apply to the county Court of General Sessions for decision of the question, a matter within that court's statutory jurisdiction.2 Usually the court would determine the town of set• { 290 } tlement and would order that town to pay all charges incurred by the other town on account of the pauper.
Although a statute provided an appeal to the “court of assize and general gaol delivery” from “sentences” of the General Sessions,3 there was no specific provision for review of orders in cases under the poor laws. The courts had developed the remedy of certiorari, following English practice in this and other cases in which no other appellate relief was provided.4 On writ of certiorari, the Superior Court limited its review to matters appearing on the face of the record, except for jurisdictional questions. The procedure on appeal in the Superior Court, however, as it was applied in civil actions and presumably in appeals from the Sessions, involved a trial de novo before a jury at which new evidence and matters outside the record could be freely offered.5 In the case of Roxbury v. Boston, the party aggrieved at Sessions sought to obtain this broader measure of relief.
The case concerned the status of one Rebecca Choate, who had allegedly been warned from Roxbury with her husband in 1738. On 31 December 1763, having at some point returned, she was removed from Roxbury to Boston by warrant of a justice of the peace. There she became and remained a public charge, except for a brief stay in Roxbury occasioned by a smallpox epidemic in Boston.
In January 1765 the Selectmen of Boston petitioned the Suffolk County Court of General Sessions for her removal to Roxbury and the return of their expenditures for her, urging that the original warrant of removal had been issued by a justice who was a Roxbury inhabitant, and therefore interested, and that Rebecca was in fact an inhabitant of Roxbury. Jeremy Gridley, who appeared for Roxbury at the April 1765 Sessions, denied that Rebecca was an inhabitant as alleged. After several continuances the case was heard in July 1766. The court found that Rebecca was not an inhabitant of Boston at the time of her warning in Roxbury or afterward, but was an inhabitant of Roxbury, and ordered the latter town to pay her { 291 } charges and costs of court to Boston. The record reflects that the Selectmen of Roxbury “appealed” to the Superior Court, giving bond as the statute provided.6
The precise reason why an appeal was sought instead of certiorari cannot be determined. It is possible that Gridley wanted the case tried to a jury rather than by the court. Suffolk jury panels included jurors from the country towns, who might tend to favor Roxbury's cause against the larger Boston.7 The reason might also have been a desire to offer evidence or raise issues not in the record. It is not clear whether “the record” for purposes of certiorari was merely the usual formal statement of pleadings and proceedings below taken from the record book of the lower court or whether it also included other papers from the files. If the former, there was evidence in the file from the trial in Sessions, which probably would not have been admissible on certiorari. Since this evidence tended to show that Rebecca Choate was not an inhabitant of Roxbury, Gridley may have wanted the Superior Court to consider it in reaching a decision.8 Whether or not this evidence was thought part of the record, it is also possible that Gridley was seeking the admission of oral testimony or additional documentary material not preserved in the file.
Whatever the reasons for taking an appeal, the case came on in the Superior Court at the August 1766 term, with Adams and Gridley arguing for Roxbury and Otis and Fitch for Boston. Adams' notes, printed below, indicate that the only question raised was whether an appeal lay. The Province statute providing an appeal from the Sessions seems to have { 292 } been offered as the basis for the proceeding, but Otis and Fitch argued that this Act did not include determinations under the poor laws, presumably because it was limited to criminal matters. The judges apparently agreed, because they dismissed the case, “being of the opinion that an appeal does not ly, by the Province Law in this case.”9
1. For a summary of the jurisdiction of Massachusetts Justices of the Peace and Courts of General Sessions, see p. xxxix–xl above; see note 145 below. For the English practice, see Edith G. Henderson, Foundations of English Administrative Law 18–25 (Cambridge, Mass., 1963). For another JA case under the poor laws, see “the Case of Dumb Tom the Pauper” (Scituate v. Pembroke), 17 May 1767, 1 JA, Diary and Autobiography336; SF 142416. For a pioneering discussion of such matters, see Charles F. Adams, Three Episodes of Massachusetts History, 2:722–781 (Boston and N.Y., 1892).
2. For the principal statutory provisions involved, see notes 11–132, 3, and 4 below; No. 25, notes 42, 64; No. 27, note 162.
3. See note 167 below.
4. The earliest use of the writ found in Massachusetts for a case under the poor laws is Waltham v. Weston, SCJ Rec. 1760–1762, fol. 161 (Middlesex, 1761). The writ, in the form printed in No. 27, Doc. V, was issued in 1759.
The first certiorari of any kind known to have issued from the Superior Court is that in Boxford Parish v. Rogers, SCJ Recs. 1753–1754, fol. 101d (Essex SCJ, Oct. 1753), a case involving a minister's salary. Edith G. Henderson, Certiorari and Mandamus in Massachusetts and Maryland 3–4 (Unpubl. paper, Harvard Law School, 1955). Prior to 1720 at least, appeals from Sessions seem to have been allowed in such matters, as well as in poor law, bastardy, and highway cases. Id. at 4–5. In 1747, however, the Superior Court dismissed the appeal in Bodfish v. Barnstable, a case under the poor laws. See note 123 below. The use of certiorari may have developed in response to this decision. The English practice is covered in Henderson, Foundations of English Administrative Law 83–116, 143–159.
5. The procedure and scope of review on certiorari are discussed more fully in No. 27. As to appeal in civil cases, see generally p. xlii above. That there was to be a jury in appeals from Sessions appears in the provision that the appellant in such cases should pay the same fee to jurors required in a civil appeal. Act of 16 June 1699, c. 1, §3, 1 A&R 368. For a case in which the Superior Court may have gone outside the record, see No. 30.
6. See the warrants of warning and removal, the petition of Boston, and the record of the Court of Sessions in SF 100839. For the requirement of bond with two sureties in appeals from “sentences” of the Sessions, see Act of 16 June 1699, c. 1, §3, 1 A&R 368, discussed further in note 7note 16 below. Boston's charges, “allow'd by the Court,” amounted to £47 3s. id. for Rebecca's board in the Alms House until her death in March 1766 and for medical care. SF 100839.
7. See, for example, the Suffolk venire, Aug. term 1766, which included 48 petit jurors, 16 from Boston, 6 from Roxbury, the rest in ones and twos from 16 other towns. SF 100784.
8. As to “the record” in certiorari, see No. 27, note 8. The evidence included Rebecca Choate's own deposition, dated 28 Jan. 1766, and those of three other witnesses, dated 20 May 1766, which indicated that she and her late husband had lived in Roxbury until some time in the fall of 1735, but during the next two and a half years had lived successively in Dedham, Stoughton, Dorchester, and Boston. SF 100839. The dates are somewhat vague, but it would have been possible to conclude that the Choates had lived without being warned in either Dedham or Boston for the year necessary to gain a settlement. In March or April 1738 they moved back to Roxbury but a copy of a warrant in the file shows that they were warned from that town in May 1738. Ibid. The file also contains an attested list of the selectmen of Roxbury for 1763, showing that Joseph Williams, the justice of the peace who ordered Rebecca's removal, held the former office as well. Ibid. This document had presumably been put in evidence for Boston on the trial, to support the contention that Williams was interested. The list would also have been admissible on an appeal, but Gridley may have intended to contest this point on legal rather than factual grounds, since he had not denied the allegation to this effect in the Sessions. The issue had not yet been ruled upon against the jurisdiction by the Suffolk Court of Sessions. See No. 27, text at note 11.
9. Min. Bk. 81, SCJ Suffolk, Aug. 1766, N–24. See SCJ Rec. 1766–1767, fol. 98. Boston was allowed costs of £1 os. 2d.

Docno: ADMS-05-01-02-0008-0001-0002

Author: Adams, John
Date: 1766-08

Adams' Minutes of the Argument and Decision1

Suffolk Superior Court, Boston, August 1766
Town of Boston vs. Roxbury.
Fitch. 1st Question whether Appeal will lie?
Page 33 of tem[porary] Acts. Art —.2
Otis. Case of Barnstable vs. Bodfish. June 1747, in Sessions. Superior Court, Barnstable July 1747.3
Prov. Law 21. Relations.4
{ 293 }
Lynde. Bastardy, Highways—Ministers and Paupers, no Appeal has been allowed.5
Gridley. This not taking up the Law upon the sense of it: but is taking up one Part of the Law to make it militate vs. another. This is nothing but an Apex Juris,6 that never occurrd to the Legislature.
Otis. The Q. is whether an Appeal will lie, from an order of Sessions, concerning the Maintenance of a Pauper.
No Appeals lie at Common Law. No Appeal in England upon Facts, nor ought there to be here.
This is not an Appeal from a Sentence, but an Order.7
Judicium i.e. quasi Juris dictum. Ld. Coke.8
Court unanimously, The appeal must not be allowed.
1. In JA's hand. Adams Papers, Microfilms, Reel No. 185.
2. Presumably a reference to the Act of 15 Jan. 1743, c. 18, §1, 3 A&R 37, which appears at p. 33 of a volume supplementary to the Temporary Acts and Laws (Boston, 1763), entitled The Acts Contained in this Book were ordered to be left out of the last Impression of Temporary Laws and printed by themselves (Boston, 1763). The section provided that all doubts or controversies concerning which town was liable for a pauper's support, or whether a pauper's condition was sufficiently “necessitous” to entitle him to relief, “shall be determined by the justices of the court of general sessions of the peace, in the county to which such poor person doth belong; and the said justices are hereby fully authorized and impowered fully to determine the same, upon application to them made for that purpose.”
3. A reference to Bodfish et al. v. Selectmen of Barnstable, SCJ Rec. 1747–1750, fol. 3 (Barnstable, July 1747), an appeal from an order of the Court of General Sessions of the Peace for Barnstable County in June 1747, directing the appellants to pay to the selectmen £2 17s. 6d., which the latter had advanced to one Thomas Haddeway, an indigent person. The appeal was dismissed with costs of £3 2s. 6d, to the selectmen. The proceeding was probably one against the relatives of the indigent, who were liable for his support under the provision next cited by Otis (note 4note 13 below). That Act was apparently construed as giving the justices sitting in sessions jurisdiction in such matters without regard to their powers under the Act of 1743, cited in note 2note 11 above. See Tomlin's Petition (1735), Records of the Court of General Sessions of the Peace for the County of Worcester, Massachusetts, from 1731 to 1737 133 (Worcester, Mass., ed. F. P. Rice, 1882); Petition of Southboro (1737), id. at 177. Any doubt that this procedure was correct was removed by Act of 12 June 1764, c. 2, 4 A&R 705.
4. The reference is to the Act of 16 Nov. 1692, c. 28, §9, 1 A&R 67–68, which appears at Acts and Laws, Of His Majesty's Province of the Massachusetts Bay in New England 21 (Boston, 1759). The section, which is set out at length in No. 25, note 42, provided that a person who had been in a town for three months without being warned out, should be considered “the proper charge of the same in case through sickness, lameness, or otherwise they come to stand in need of relief, to be born by such town, unless the relations of such poor impotent person in the line or degree of father or grandfather, mother or grandmother, children or grandchildren be of sufficient ability; then such relations respectively shall relieve such poor person in such manner as the justices of the peace in that county where such sufficient persons dwell shall assess.”
5. These were the principal areas of the General Sessions' administrative jurisdiction. See Act of 1 Nov. 1692, c. 18, §5, 1 A&R 52 (Sessions to determine paternity and order father to pay maintenance of bastard; see No. 28); Act of 19 Feb. 1757, c. 18, 3 A&R 1001 (appeal to Sessions on damages for highway land-taking); Act of 4 Feb. 1734, c. 14, 2 A&R 834 (Sessions may award damages for town's refusal to allow a private way); Act of 7 June 1698, c. 2, 1 A&R 311, as amended by Act of 4 July 1734, c. 2, 2 A&R 711 (Sessions may order removal of structures encroaching on highways; see No. 33, note 117); Act of 4 Nov. 1692, c. 26, §§1, 2, 1 A&R 62 (Sessions may order town to provide and maintain a minister and charge inhabitants; see Parsons' Petition [1732], Worcester Sessions Records 47); Act of 14 Nov. 1706, c. 9, 1 A&R 597 (Grand jury to present delinquent towns to Sessions. If towns do not comply with Sessions' orders, General Assembly will provide minister). As to the last two acts, see No. 37, note 2.
6. Literally, the summit of the law. Here used in the sense of a legal subtlety or technicality that carries a rule to an extreme beyond even strict application. Black, Law Dictionary.
7. The Act of 16 June 1699, c. 1, §1, 1 A&R 367, established the justices of the peace for each county as the Court of General Sessions “impowred to hear and determin all matters relating to the conservation of the peace, and the punishment of offenders, and whatsoever is by them cognizeable according to law, and to give judgment and award execution therein.” The act provided in §3, p. 368, “That it shall and may be lawful for any person agrieved at the sentence of the justices in any court of general sessions of the peace, to make his appeal from such sentence (the matter being originally heard and tryed in said court) unto the next court of assize and general goal delivery to be held within or for the same county, there to be finally issued,” if the appellant gave security, and filed reasons of appeal and copies of the sentence appealed from and the evidence with the clerk of the court to which the appeal was taken.
8. Probably Coke, Littleton 39a: “Judgement. Judicium quasi juris dictum, the very voice of Law and Right, and therefore, Judicium semper pro veritate accipitur. The ancient words of Judgment are very significant, Consideratum est, &c., because that Judgment is ever given by the Court upon due consideration had of the Record before them.” Compare id. at 168a, 226a. Otis may mean that in the absence of statute providing an appeal the court is bound by the record.

Docno: ADMS-05-01-02-0008-0002-0001

Editorial Note

Josiah Marshall had lived in Plympton from 1747 until 1753, and had then spent five years at Middleboro as master of the grammar school. In 1758 he returned to Plympton, but in either 1760 or 1762 moved again, to teach school at Pembroke. According to his own testimony, he remained in the latter town for two years and two months. His next stop cannot be determined with certainty, but at some point in his wanderings he was warned and removed from Plympton. It was Plympton, however, which petitioned the Plymouth County Court of General Sessions in July 1766 for a determination of his status.1 Since such petitions were usually brought by the town in which a pauper was actually residing, it is probable that Marshall went from Pembroke to Middleboro and was removed from the latter town to Plympton, and that his removal from Plympton had occurred earlier in his career. It is also possible that he went from Pembroke to Plympton and that Plympton then removed him, subsequently petitioning to recover its charges for the period prior to his departure.
Whatever the facts, the case was tried at the October 1766 Sessions, with Adams as counsel for Middleboro and Paine apparently arguing for Plympton. According to their minutes (Documents I, II), the principal issue was the validity of Marshall's removal from Plympton. Adams argued against both the warrant of warning and the warrant to remove. Against the former he raised a series of formal objections, including the failure of the selectmen to make return of the warning to the clerk of the Court of General Sessions within the time required by statute. He also attacked the removal warrant on formal grounds and raised an issue that was to be important in later cases (No. 26, No. 27), that the justice who issued it was an inhabitant of Plympton, and so interested in the outcome. The court ruled in favor of Middleboro, according to Adams' account, because of the lack of a timely return to the warrant of warning.2
1. See JA, Docket, Plymouth Inferior Court, July 1766, a listing covering both the Inferior Court and General Sessions, which sat together. Adams Papers, Microfilms, Reel No. 182. The facts of the case cannot be stated with certainty because the only sources of information available are the docket and JA's and Paine's minutes (Docs. I, II), which are incomplete and not entirely consistent with one another.
2. Middleboro received its costs. See JA, Docket, Plymouth Inferior Court, Oct. 1766. Adams Papers, Microfilms, Reel No. 182. This entry and the docket for July 1766 show that JA received a retainer of 6s. and a fee of £1 10s.

Docno: ADMS-05-01-02-0008-0002-0002

Author: Adams, John
Date: 1766-10

Adams' Minutes of the Argument1

Plymouth Court of General Sessions, October 1766
Plymton vs. Middleborough.
Benja. Shurtliff. Deer. 21st 1753. Marshall went from Plympton to Middleborough.
Josa. Marshall. 25 Aug. 1747 came to Plympton first, to 10 Novr. 1753. 7 July 1758, returned to Plympton from Middleborough, where I went first 21st Deer. 1753.
2 Years and 2 months at Pembroke. Came from there 4 Years ago last Spring.
Mem. This Cause was decided in my favour, who was for Middleborough, by a great Majority of the Court, upon this single Point, vizt. that Caution was not entered in the Clerks office within the Year. The Q. was upon the Words of Prov. Law. 4. Wm. & Mary, C. 12, the Act for Regulating Townships &c. The 9th Clause in the Act is “if any Person &c. sojourn or dwell &c. 3 months, &c. not having been warned by the Constable, and the Names, Abode and Warning returnd unto the Court of Quarter Sessions, &c. shall be reputed an Inhabitant, &c.”2 Not having been warned, and the Warning &c. not having been returned, within 3 months, in [is?] the obvious and grammatical Construction.
'Tho many other Points were stirred by me, particularly the Warrant to carry out, was given by Justice Bradford of Plympton, and so { 296 } a Person interested, and I produced the Case of the two Parishes of Great Charte and Kennington B.R. 16. G. 2. Strange Rep. 1173. Order of 2 Justices quash'd, because one was an Inhabitant of the Parish from whence the Pauper was removed.3
Making an order of removal a Judicial Act, and the Party interested is tacitly excepted out of 13 & 14th C[harles] 2d, c. 12, which gives the Power to any 2 Justices of Peace, as our Prov. Law does to the next Justice.4 Lord Raymond went off the Bench when an order of Abbotts Langley the Parish where he lived came before the Court.5
1. In JA's hand. Adams Papers, Microfilms, Reel No. 185.
2. Closing quotation marks supplied. JA is citing “An Act for Regulating of Townships, Choice of Town Officers, and Setting Forth Their Power,” 16 Nov. 1692, c. 28, §9, 1 A&R 67: “[I]f any person or persons come to sojourn or dwell in any town within this province or precincts thereof, and be there received and entertained by the space of three months, not having been warned by the constable or other person whom the selectmen shall appoint for that service to leave the place, and the names of such persons with the time of their abode there, and when such warning was given them, returned unto the court of quarter sessions, every such person shall be reputed an inhabitant of such town or precincts of the same,” so as to charge the town for his support if he stands in need of relief, subject to a proviso if there are relatives, set out in No. 24, note 134. By the Act of 12 March 1701, c. 23, §§4, 5, 1 A&R 453, no town was to be charged with a newcomer unless his presence had been approved by the selectmen of the town, or “unless such person or persons have continued their residence there by the space of twelve months next before, and have not been warned in manner as the law directs, to depart and leave the town, any law, usage or custom to the contrary notwithstanding.” The requirements for approval were made more stringent by the Act of 5 Jan. 1740, c. 9, §1, 2 A&R 995. The time period was eliminated altogether and approval made the only basis for gaining a settlement in the Act of 19 March 1767, c. 17, §6, 4 A&R 911.
3. Here and in the following paragraph, JA has paraphrased the case of Parish of Greate Charte v. Parish of Kennington, 2 Str. 1173, 93 Eng. Rep. 1107 (K.B. 1742). The order of the two justices had been quashed in Sessions. In favor of the order it was argued before the King's Bench that the practice was authorized by statute (note 64 below), was necessary because there might be a corporation with only two justices, and was saved because there was an appeal on the merits to the Sessions. For the result, see note 75 below.
4. In Greate Charte v. Kennington, note 53 above, it had been argued that the practice complained of was authorized by the statute, 13 & 14 Car. 2, c. 12, §1 (1662), which provided that upon complaint made to a justice by the churchwardens of any poor person within forty days after his arrival, it should be lawful “for any two justices of the peace, whereof one to be of the quorum, of the division where any person or persons that are likely to be chargeable to the parish shall come to inhabit, by their warrant to remove and convey such person or persons to such parish where he or they were last legally settled.” By §2, an appeal to the Quarter Sessions was provided for any person aggrieved. The “Prov. Law” referred to by JA is the Act of 16 Nov. 1692, c. 28, §10, 1 A&R 68: “That any person orderly warned as aforesaid [under id., §9, note 42 above] to depart any town whereof he is not an inhabitant, and neglecting so to do by the space of fourteen days next after such warning given, may by warrant from the next justice of the peace be sent and conveyed from constable to constable unto the town where he properly belongs or had his last residence at his own charge, if able to pay the same, or otherwise at the charge of the town so sending him.” This provision was also eliminated by the Act of 19 March 1767, note 42 above, which, in §7, authorized removal of all persons not approved by the town. There is evidence, however, that the practice of warning was still followed. See 5 A&R 260.
5. This paragraph is based on the conclusion of the court's opinion in Greate Charte v. Kennington, note 53 above: “But the court held, that this was a judicial act, and the party interested is tacitly excepted. Lord Raymond, who lived in the parish of Abbotts-Langley, went off the Bench, when one of their orders came before the court. They said the practice could not overturn so fundamental a rule of justice, as that a party interested could not be a Judge. And as to the case of corporations, they said that if it appeared that there were no other justices, it might be allowed; to prevent a failure of justice. And therefore they confirmed the order of sessions.” The reporter adds, “Vide the act 16 Geo. 2, c. 18. to remedy this.” For this statute, see No. 27, note 2810. The court's last point is an interesting contrast to the absolute force given the proposition that a man may not be judge in his own cause in the authorities cited in the argument on the writs of assistance in 1761. See No. 44, note 7119. For another Massachusetts case in which both Greate Charte and the latter authorities were cited, see Jeffries v. Sewal (Suffolk Inferior Court, Nov. 1762), reported in 1 JA, Diary and Autobiography230–231. As to the parish of Abbotts Langley, see King v. Inhabitants of Abbots Langley, 1 Barn. K.B. 148, 94 Eng. Rep. 103 (1729), in which Lord Raymond, “being of this parish, ... said he would give no opinion.”

Docno: ADMS-05-01-02-0008-0002-0003

Author: Paine, Robert Treat
Date: 1766-10

Paine's Minutes of the Argument1

Plymouth Court of General Sessions, October 1766
Plympton vs. Middleborough
Shurtleffe. J. Mar[shall] went from Plym[pton] to Mid[dleborough] 21. Dec. 1753.
Mr. Josiah Marshal. Came to Plymp[ton] Augt. 1747 till 20th Novr. 1753.2 Then to Midd[leborough], returned to Ply[mpton] 7th July 1758. Was Grammar School Master at Midd[leborough]. I went to Pembroke 4 yr. ago and kept school there 2 yr. and 2 months.
Capt. Sprout. Mr. Marshal kept School at Midd[leborough] 5 years.
Pity there should be a dispute.
Warrant of Warning no Seal no mention made of his Wife and children, not to depart within 14 days. A man and his family means nothing more than the man; Marshals Wife was born at Plymton.
Warrant to remove, not setting forth the cause, given by a Justice in the same Town
Strange. 1163.3
1. In Paine's hand. Paine Law Notes.
2. Thus in MS. JA's notes read 10 November.
3. That is, Greate Charte v. Kennington, note 53 above. Paine has erroneously written “1163.”

Docno: ADMS-05-01-02-0008-0003-0001

Editorial Note

In August 1768, William Dix, a pauper, was removed from Boston to Chelsea by virtue of the warrant of John Hill, a Boston justice of the peace. The selectmen of Chelsea petitioned the Suffolk General Sessions in April 1769 for his return to Boston and for reimbursement of their expenses in his behalf. The petition, which was drafted by John Adams and is printed below, urged that Dix was not an inhabitant of Chelsea, and had not been alleged or adjudged to be such in the removal proceedings. Adams also raised the point that Justice Hill was disqualified by virtue of his residence in Boston.
The case was heard at a May adjournment of the court and then continued. In August, at an adjournment of the July term, the court was “unanimously of opinion that Justice Hill who granted the warrant men• { 298 } tioned in said Petition, being at that time an inhabitant of said town of Boston had no legal power so to do and therefore that the prayer of the Petition be granted.” Boston was accordingly ordered to pay Chelsea its charges of £20 7s. 4d. and costs of £5 18s. 2d., and to accept Dix back.1
1. Sess. Min. Bk., Aug. 1769. As to the question of an interested judge, see No. 25, notes 5–73, 4, and 5; No. 27, text at notes 11–14.

Docno: ADMS-05-01-02-0008-0003-0002

Author: Adams, John
Date: 1769-04

Adams' Petition1

Suffolk Court of General Sessions, Boston, April 1769
Suffolk Ss. To the Honorable his Majestys Justices of his Court of General Sessions of the Peace held at Boston in and for the County of Suffolk on the Third Tuesday of April in the Ninth Year of his Majestys Reign Annoque Domini 1769.
Humbly Shew Thomas Pratt, Gentleman, Samuel Sprague, Yeoman, Samuel Serjeant, Gentleman, Samuel Watts Jnr, Gentleman, Samuel Pratt, Gentleman, all of Chelsea in said County and Select Men and overseers of the Poor of the Said Town,
That on the Twenty third day of August Anno Domini 1768, one William Dix, a poor impotent Man, was, by Force of a Warrant given by John Hill Esqr. a Justice of the Peace for Said County, on the Twentyeth day of August A.D. 1768, <at the prayer of> on the Complaint of John Sweetser, by order of Joseph Jackson Esq. and other the select Men of the Said Town of Boston, removed from thence into the aforesaid Town of Chelsea, as the proper Place of his Abode, there to be relieved and Supported, at the Charge of the Inhabitants of Said Town of Chelsea. That the Said William is poor, lame, and utterly unable to support himself, and has been relieved and supported by the Inhabitants of Said Chelsea ever since his Removal to that Town at the Expence of Twelve Pounds six shillings and Eight Pence of lawfull Money.
Now your Petitioners apprehend and aver that the aforesaid Removal was and is contrary to Law for these Reasons among many others.
1. Because the Said William Dix was not at the Time of his said Removal an Inhabitant of Chelsea nor had any legal settlement there, nor was the Poor of that Town, nor was Chelsea the Town where he had his last Residence.
{ 299 }
2. Because the said Dix is not alledged in the aforesaid Complaint of John Sweetser by order of the select Men of said Boston, to be an Inhabitant of said Chelsea, or to have a legal settlement there, or to be the proper Poor of that Town or to have had his last Residence there nor are any of these Things alledged or averred in the said Warrant of the said Justice.
3. The said Dix is not adjudged, by said Justice in said pretended Warrant, to be an Inhabitant of said Chelsea, nor to have a legal settlement there, nor is there in said Warrant any Adjudication that said Dix had his last Residence in said Town of Chelsea.
[4.] The said worshipfull John Hill Esq. was at the Time when said pretended Warrant was given an Inhabitant of said Town of Boston, and Rated for the support of the Poor there, and therefore interested in Said Removal, and disqualifyed for that Reason for giving a Warrant in such Case.
For these Reasons and many others your Petitioners say that the said William Dix was illegally removed from Boston aforesaid into Chelsea aforesaid, and that the Inhabitants of Chelsea aforesaid ought not to be at that Charge and Expence of relieving or Supporting him, but that the Inhabitants of Boston aforesaid ought to be at that Charge: And your Petitioners humbly pray your Honours would accordingly order that the said William Dix be removed back again from said Chelsea to Boston aforesaid, there to be relieved and supported at the Charge of the Inhabitants of said Boston for the future and that the Inhabitants of Chelsea may be reimbursed the Expences they have been been at and may be at for such support untill such Removal back into Boston aforesaid, together with the Costs and Charges of this supplication.
And your Petitioners as in Duty bound will ever pray.
[signed] John Adams for said Pet[itioner]s
1. In JA's hand, and signed by him “for said Pet[itioner]s.” SF 88992. The court's April 1769 order of service on the Selectmen of Boston in the hand of Ezekiel Goldthwait, Clerk, which follows JA's signature on the last sheet, has been omitted here.

Docno: ADMS-05-01-02-0008-0004-0001

Editorial Note

The constable of Roxbury had conveyed John Chaddock (alias Chadwick, Chattuck, or Shattuck), his wife, three children, and assorted household goods, to Brookline in January 1767, pursuant to a warrant of removal issued by a Roxbury justice of the peace. In 1760 the selectmen of Roxbury had warned a John Chaddock, or Chadwick, and family, out of { 300 } the town after a two months' stay. They now asserted that these families were the same, so that the statutory prerequisite of warning within a year after arrival had been complied with.1
Brookline contested the removal, petitioning the Suffolk General Sessions in May 1767 for the return of Chaddock to Roxbury and for the town's expenses. Jeremy Gridley signed the petition, but Adams' list of questions presented (Document I) and notes of authorities (Document II) indicate that it was he who argued the case when it finally came on after numerous continuances in November 1768, Gridley having meanwhile died. The petition, which sets forth other documents in the case, appears below as part of the record of the Sessions proceedings (Document III). It urges ten grounds for quashing the removal order, which are principally attacks upon the formal sufficiency of the warrants of warning and removal. Gridley had also contended, however, that the man removed was not the man warned, and that the removal warrant was void because the justice issuing it was an inhabitant of Roxbury and thus interested in the outcome.
Adams' questions presented (Document I) correspond with the grounds of the petition, with two additions: (1) whether a Justice in such a case acted ministerially or judicially (which was related to the problem of interest); (2) whether evidence beyond what Adams called “the Records of this Court” (the warrants and returns) was admissible. Probably Roxbury sought to establish the identity of various persons named in the warrants and thus to cure the alleged defects in them.2 It is not clear why Adams raised this point. In Roxbury v. Boston, No. 24, depositions and other documentary evidence seem to have been at least offered in the trial at Sessions, and were probably accepted, since they formed part of the file of the case. The issue was not reached on the trial in the present case, however, in view of the court's ruling on the merits, to be discussed below.
The three groups of authorities which Adams had prepared for the trial (Document II) give some indication of the issues which he sought to emphasize in argument. The first group deals with the necessity for particularity in naming persons ordered to be warned or removed. The second group consists principally of the forms followed in English removal proceedings, which were based upon a statute similar in its generality to the Province Act here involved, but which set forth in detail just those matters which were unclear in the warrant now before the court. Finally, Adams raised the issue of the interested justice, citing authorities which he had used in Plympton v. Middleboro, No. 25.
At the trial, Robert Auchmuty, counsel for Roxbury, in effect demurred to the petition. Upon motion the court gave its opinion, set out in the { 301 } record (Document III), that Brookline's allegations were not sufficient to entitle the town to a trial of the question whether Chaddock and family had a settlement there or in Roxbury. This ruling in effect meant that the 1760 warning was effective to prevent the Chaddocks from gaining a settlement in the latter town. Roxbury then moved to dismiss, but on further argument the court instead upheld the petition, presumably on the ground that the removal warrant was in some way faulty. Roxbury was ordered to pay Brookline Chaddock's charges and costs of court; and the Chaddocks were to be returned. Brookline's account for £67 16s. 4 ¾d., which was approved by the court in January 1769, is set out as an example of the scope and quantity of 18th-century poor relief (Document IV). Execution issued for the sum there stated and costs of £6 3s. 4d. on 9 March 1769.3
At the March 1769 term of the Suffolk Superior Court, Fitch moved in Roxbury's behalf for a writ of certiorari. This process, by which a higher court could command an inferior court to certify and send up the record of its proceedings, had been used in England since some time in the 17th century to quash an order of Sessions, but had been adopted in Massachusetts at a relatively recent date.4 The documents involved in this case, which are an interesting example of the adoption of English forms to local needs, are set out below. The writ issued in July, returnable at the August term (Document V). Return was duly made both of the Sessions record (Document III) and of copies of other formal papers from the file.5 Fitch then filed an assignment of errors sometime before March 1770 (Document VI). This form, not used in the English practice, suggests that in Massachusetts certiorari was viewed as not differing materially from the writ of error, in which the assignment was part of the proceedings both in England and in the Province.6
The errors which Fitch assigned are of interest in light of the 18th-century English limits on the scope of review in certiorari to quash. In the English practice, through an accident of historical development, only matters denominated “jurisdictional” had to appear on the face of the record, but an order could be quashed if such matters did not appear. If jurisdictional matter was set out, however, evidence outside the record, in { 302 } the form of affidavits, was admissible to attack it. Matter of record that was not “jurisdictional” could be attacked if on its face it was not consistent with the order, but no additional evidence was admissible for this purpose. Naturally enough, this practice gave rise to much doubt as to the meaning of “jurisdictional,” and the term was often expanded to include issues which might not ordinarily seem to be within it. It should further be noted that the “record” in the English practice was only the formal statement of the court's judgment and order, not the entire pleadings and proceedings below, which the term usually signifies.7
The first four errors assigned by Fitch (Document VI) were jurisdictional in the broadest sense. Together they were to the effect that only the merits of the question of a pauper's settlement, and not errors of law in the proceedings had with regard to him were within the court's jurisdiction. This order had to fall, because it granted the petition not only in the absence of necessary allegations or findings on the merits, but despite a specific finding that there was no question on the merits. The second assignment of error, attacking the petition, would presumably have been irrelevant under the English practice whereby jurisdiction had to appear in the judgment or order itself.8 The fifth error assigned attacked the absence of various findings in the record. In the English view, if any of these had been “jurisdictional” the order would have been fatally defective for lack of them.9
After notification of Brookline to appear in March 1770 (Document VII), the case was further continued until February 1772, when with Adams and Fitch arguing, it finally came on for hearing. According to a note in Adams' docket, the matter was “determined for Brooklyne, 7[th] d[ay] upon Arg[ument] of all the Errors filed.” The Superior Court affirmed the judgment, with further costs of £9 13s. 3d.10 In the narrowest view this decision held only that the Court of General Sessions had jurisdiction to deal conclusively with errors of law in the record before it and that the matters set forth in the fifth assignment as omitted from the order were not “jurisdictional.” But it is possible, in light of Adams' description of the { 303 } result, that the court, in examining “all the Errors,” looked to the record itself and affirmed the decision of the Sessions on the legal questions.
Whatever the force of the court's holding, the decision in this case seems to be related to a statutory change made several months later. In Chelsea v. Boston, No. 26 (1769), the Suffolk Sessions, after its decision in the present case, had expressly held that a removal warrant was void because issued by a Justice who was an inhabitant of the removing town. The court must have followed this rule in other cases as well, because in June 1771 the Selectmen of Boston petitioned the General Court for a change in the law, complaining “that the Court of General Sessions of the Peace for this County have of late construed said Acts11 in a different manner, by adjudging that a removal by virtue of a Warrant from a Justice of the Peace of this Town is not a legal removal as said Justice is somewhat interested therein, and that it properly lays with one of His Majesty's Justices of the Peace of a Neighbouring Town to grant said Warrant—That in consequence of this novel construction of said Acts this Town has already been put to considerable charge and difficulty, which from its peculiar situation and circumstances, and the great number of Vagrants and other poor Strangers which dayly flow in upon us, is like greatly to increase.”12
The Committee to which this petition was referred recommended that it be put over until the next session.13 On 14 July 1772 an act was passed which recited that the practice of which Boston had complained was followed in “the courts of general sessions of the peace for several counties . . . whereby a number of towns in the province, more especially the town of Boston, have been put to much inconvenience and charge, and the expence of the province is likely to be greatly encreased.” The act went on to provide that “the removal of any person, by a warrant obtained from one of his majesty's justices of the peace residing in the town from whence the person is to be sent or conveyed, to any other town, either in or out of the province, shall, to all intents and purposes, be deemed as legal a removal as if the warrant had issued from a justice of the peace living in any other town.”14
On the trial of Brookline v. Roxbury at the Sessions in 1768, Adams had urged the invalidity of the warrant on the grounds of the Justice's residence, but the issue had not been expressly referred to by the court as part of the basis for its decision. The question was an important one, however, and may well have been the principal defect which the court found in the warrant of removal. If this was so, it is possible that legislative action was deferred pending the outcome of the proceedings on certiorari, with the hope that the Superior Court might overrule the Sessions on the point. When, instead, the result was a holding which at least recognized the { 304 } power of the Sessions to rule on such questions without interference from above, and may even have gone so far as to indicate approval of the rule followed in the lower court, the only remedy left was the legislation which was forthcoming.
1. The warrants are set out in Doc. III. As to the statutory requirement, see No. 25, notes 42, 64.
2. The files contain subpoenas to the Aug. term of the Suffolk Sessions and its Oct. adjournment, summoning six witnesses, including John and Martha Shattuck of Brookline, and William Borrough of Roxbury, the Chaddocks' alleged host there in 1760. SF 102089. See Doc. III.
3. Sess. Min. Bk., 7 Nov. 1768. A copy of the bill of costs in SF 102089 shows a total of £6 3s. 8d. It is not clear whether the discrepancy is due to a copyist's error or represents a reduction by the court. See also note 483 below.
4. The motion and the court's order granting it appear in Min. Bk. 89, SCJ Suffolk, March 1769. For the development of the writ in England, see Edith G. Henderson, Foundations of English Administrative Law 83–116 (Cambridge, Mass., 1963). As to the Massachusetts development, see No. 24, note 4.
5. These included copies of Brookline's account (Doc. IV), the Sessions bill of costs, two subpoenas (note 2 above), the two warrants, Brookline's petition, and the court's opinion on the question of dismissal. The last three items appear virtually verbatim in the Sessions record (Doc. III).
6. As to the proceedings in error in England, see Sutton, Personal Actions 136–144. See also note 8 below. For other evidence that little distinction was seen between error and certiorari, see Edith G. Henderson, Certiorari and Mandamus in Massachusetts and Maryland 9–10 (Unpubl. paper, Harvard Law School, 1955).
7. See Henderson, Foundations of English Administrative Law 143–145. That this practice was not strictly followed in Massachusetts is suggested by Josselyne v. Harrington, No. 30. Compare No. 28.
8. This would seem to be a natural result of the fact, already noted in the text at notes 5, 7, above, that in England only the judgment and order were sent to the higher court on certiorari to quash, while in Massachusetts, the whole record (including the pleadings), as well as other formal documents, was sent up. It is not clear whether all of this material would be considered of “record.” See No. 24, text at note 8. Pond v. Medway, Quincy, Reports 193 (SCJ Suffolk, 1765), SF 100637, is ambiguous on this point. For indications that the “record” for review purposes meant only the document containing pleadings, procedural steps, and judgment, see No. 28.
9. For examples of fatal defects in English practice, see Henderson, Foundations of English Administrative Law 149–154.
10. See JA, Docket, Suffolk, Feb. 1772, Adams Papers, Microfilms, Reel No. 183; Min. Bk. 95, SCJ Suffolk, Feb. 1772, C–9; SCJ Rec. 1772, fol. 2. “7th day” is the seventh day of the court's sitting.
11. That is, the removal provisions, set out in No. 25, note 64.
12. Printed in 5 A&R 261, from 47 Mass. Arch. 551.
13. 5 A&R 261.
14. Act of 14 July 1772, c. 4, 5 A&R 198. A similar English provision is set out in note 2810 below.

Docno: ADMS-05-01-02-0008-0004-0002

Author: Adams, John
Date: 1768-11

Adams' List of Questions Presented1

Suffolk Court of General Sessions, Boston, November 1768
Town of Brooklyne vs. Town of Roxbury
A great Number of Questions arise upon this Petition.
1 st. Whether a Justice of the Peace, can by Law, issue a Warrant for the Removal of a Pauper, from the Town where the Justice is an Inhabitant?
2. Whether a Warrant from the Select Men or Overseers of the Poor in a Town, to warn Strangers to depart, is good without warning those Strangers particularly?
3. Whether the Person warned in this Warrant of the Select Men is the Same Person, named in the Return of the Constable, and whether the Person named in the Justices Warrant is not a different Person from that named in the select Mens Warrant, and different also from him named in the Constables Return?
4. Whether the Justices Warrant, commanding the Constable <of Roxbury to deliver the Pauper to the Cons> of Brooklyne to receive the Pauper, and deliver him to the Select Men, is good, not being directed to the Constable of Brookline or Select Men of Brookline, or any Body else, but to the Constable of Roxbury?
5. Whether the Justices Warrant can be good, as it admits that the Pauper had lived Six Years in Roxbury, and only Says under Warning. i.e. when it appears upon the Face of the Warrant, that the Pauper had lived in the Town long enough to gain a Settlement by Law, whether the Particulars of his Warning out should not be set forth, i.e. the Time when, and the Authority by which, he was warnd to depart.
6. Whether a Warrant of Removal can be good, without setting forth with Certainty, one of these Things, vizt. Either that the Paupers legal settlement was at the Town he is to be removed to, or that he is an Inhabitant of that Town, or the Poor of that Town, or { 305 } had his last Residence in that Town? Now in this Warrant it is only set forth disjunctively, Either that the said Pauper properly belongs to Brookline, or had his last Residence there.
7. Whether there is any Authority in Law for a Justice to command a Constable in his Warrant to remove the Goods and Effects of the Pauper?
8. Whether a Warrant of Removal should by Law be made returnable to the Clerk of the Peace, or the Justice who issued it.
9. Whether, in the Discussion of this Case, we must not be confined to the Records? Or Whether Roxbury shall be admitted to give any Kind of Evidence in Explanation or Reconciliation of these Records, i.e. these Warrants and Returns? For these Warrants and Returns are all of them Records. Even the Warrant of the Select Men must by Law be returned to the Clerk of the Peace and made a Part of the Records of this Court.2
10. Whether a Justice of the Peace, in granting a Warrant of Removal, is a Judicial or merely a ministerial officer?3
11. Whether a Justices Warrant of Removal ought not to be quashed for Uncertainty when it orders the Removal of a Person and his family, without naming Wife or Children, or when it orders the Removal of a Pauper and his Children or 5 Children, without naming those Children or ascertaining their ages.
12. Whether the Select Men in their Warrant for Warning, requiring the Constable to warn John Chaddock and Family, Jonathan Smith, Jona. Smith Jnr. and Mrs. Cammell all and every one of the above said Persons, to depart in 14 days, or give security, from all Charge that may arise by means of any or Either of the said Persons, have not renderd their own Warrant void? For by Law, no Person warned out is obliged to give security for 20 other Persons, it is sufficient if he gives security for him self and his own family.4
1. In JA's hand. Adams Papers, Microfilms, Reel No. 185. In the MS there is a plus sign or dagger at the beginning and end of each numbered paragraph. These may be notations made by JA as each question was reached and considered. They are not here reproduced.
2. By virtue of the Act of 16 Nov. 1692, c. 28, §9, 1 A&R 67, set out in No. 25, note 42.
3. See Greate Charte v. Kennington, discussed in No. 25, note 53.
4. No provision of the Province law on warning and removal has been found which permits the selectmen to take security from the pauper himself in lieu of removal. As the Act is worded, however, removal after warning is not mandatory, so that presumably security would be permissible. See Act of 16 Nov. 1692, c. 28, §§9, 10, 1 A&R 68, set out in No. 25, notes 42, 64. Such a practice was sanctioned by the English statute, 13 & 14 Car. 2, c. 12, §1 (1662), set out in part in id.,note 64, which provided that two Justices could give their warrant to remove any poor persons to their place of last abode, “unless he or they give sufficient security for the discharge of the said parish, to be allowed by the said justices.” There was a Massachusetts provision that a person “entertaining” someone for nursing, education, or medical care should be “the town's security” for any charges. Act of 16 Nov. 1692, c. 28, §9, 1 A&R 68. Although the warrant (text at notes 36–388–12 below) is ambiguous enough to have been addressed to the persons named as keeping the paupers, there is no evidence that the latter fell within this provision.

Docno: ADMS-05-01-02-0008-0004-0003

Author: Adams, John
Date: 1768-11

Adams' Notes of Authorities1

Suffolk Court of General Sessions, Boston, November 1768
Brooklyne vs. Roxbury.
Prov. Law. Page 23. Names returned.2
2. Salk. 482. Anonimous. 3 Men and families.3
2 Salk 485. Sylvanus Johnson.4
Foleys Poor Laws 427. Lenham vs. Peckham.5
Foley 426. Flixton vs. Roston.6
Form of an order of Removal, Burn V. 3, P. 378. V. 3, Page 377.7
{ 307 }
13 [&] 14 Car. 2, Chap. 12, cited in Burn V. 3, P. 375.8
Prov. Law, 4 W. & M. c. 12.9
Justice shall not act in his Town.
2 Strange 1173 Great Charte and Kennington. Foley Page 104. Statute, 16 G[eorge] 2d, c. 18. Act to impower Justices.10
1. In JA's hand. Adams Papers, Microfilms, Reel No. 185. The present dating is based on the fact that the MS appears on a leaf with cases decided in April 1768 and May 1769 at Plymouth.
2. The reference is to the Act of 16 Nov. 1692, c. 28, §9, 1 A&R 67. JA is here citing Acts and Laws, Of His Majesty's Province of the Massachusetts Bay in New England 23 (Boston, 1742). Compare the citation to the same act in the 1759 edition, No. 24, note 134. The section cited, set out in full in No. 25, note 42, provided that persons remaining in the town for more than three months without being warned to leave, “and the names of such persons with the time of their abode there, and when such warning was given them, returned unto the court of quarter sessions,” should be reputed inhabitants for relief purposes. The time period was extended to twelve months in 1701 and eliminated altogether in an Act of 1767 passed too late to be applicable to this case. Ibid.
3. Anonymous, 2 Salk. 482, 91 Eng. Rep. 415 (K.B. 1698): “An Order made to remove three Men and their Families was quashed, quia too general; for some of their Family might not be removeable.”
4. Case of Sylvanus Johnson, 2 Salk. 485, 91 Eng. Rep. 417 (K.B. ca. 1698). At sessions, “ordered that Johnson and his Wife and Family, should be removed to Sandherst, which was quashed; because Non constat what is meant by his Family, and some of them may have a legal Settlement [in the town removing], tho' J. had not.”
5. Robert Foley, Laws Relating to the Poor 427 (London, 4th edn., 1758), citing the unreported case of Inhabitants of Lenham v. Inhabitants of Peckham (Q.B. 1711): “Upon Complaint that A. was likely to become chargeable, the Justices make an Order to remove the Pauper, his Wife and Family; quash'd as to the Family.” There follow citations of the cases in notes 213 and 224 above.
6. Foley, Laws Relating to the Poor 426, citing the unreported case of Flixton v. Roston (Q.B. 1710): “This was a Motion to quash an Order of two Justices, which was made for the Removal of one Jane Smith and her five children. Exception. It's too uncertain; for it neither tells the Name or Ages of the Children: Wherefore the Order was quash'd as to the Children.”
7. The precise edition of Richard Burn, The Justice of the Peace and Parish Officer, cited by JA has not been located. “The form of a general order of removal” appears both in the 6th edition, London 1758, at 3:83–84, and in the 11th edition, London, 1769, at 3:432–433. It is here set out from the latter:
“Westmorland. To the churchwardens and overseers of the poor of the parish of Orton in the said county of Westmorland, and to the churchwardens and overseers of the poor of the parish of Penrith in the county of Cumberland, and to each and every of them.
Upon the complaint of the churchwardens and overseers of the poor of the parish of Orton aforesaid in the said county of Westmorland, unto us whose names are hereunto set and seals affixed, being two of his majesty's justices of the peace in and for the said county of Westmorland, and one of us of the quorum, that John Thomson, Mary his wife, Thomas their son aged eight years, and Agnes their daughter aged four years, have come to inhabit in the said parish of Orton, not having gained a legal settlement there, nor produced any certificate owning them or any of them to be settled elsewhere, and that the said John Thomson, Mary his wife, and Thomas and Agnes their children, are likely to be chargeable to the said parish of Orton; We the said justices, upon due proof made thereof, as well upon the examination of the said John Thomson upon oath, as otherwise, and likewise upon due consideration had of the premisses, do adjudge the same to be true; and we do likewise adjudge, that the lawful settlement of them the said John Thomson, Mary his wife, and Thomas and Agnes their children, is in the said parish of Penrith in the said county of Cumberland: We do therefore require you the said churchwardens and overseers of the poor of the said parish of Orton, or some or one of you, to convey the said John Thomson, Mary his wife, and Thomas and Agnes their children, from and out of the said parish of Orton, to the said parish of Penrith, and them to deliver to the churchwardens and overseers of the poor there, or to some or one of them, together with this our order, or a true copy thereof, at the same time shewing to them the original; And we do also hereby require you the said churchwardens and overseers of the said parish of Penrith, to receive and provide for them as inhabitants of your parish. Given under our hands and seals the [] day of [] in the [] year of the reign of his said majesty king George the third.
On the preceding pages are forms of summonses to paupers lacking settlement and to the churchwardens of a parish to which removal is sought to appear before a justice or justices for examination and adjudication of removal. Id. at 430–432.
8. 13 & 14 Car. 2, c. 12, §1 (1662), set out in Burn, Justice of the Peace 428–429 (1769), appears in pertinent part in No. 25, note 64.
9. That is, the Act of 16 Nov. 1692, c. 28, 1 A&R 64–68, the basic Province poor law. Sections pertinent to removal are set out in No. 24, note 134; No. 25, notes 42, 64. JA's point here and at note 268 above seems to be that the English forms cited in note 257 above are not dictated by statute, because the English and Massachusetts acts are similarly general in their language.
10. For the case of Greate Charte v. Kennington, set out from Strange's Reports in Foley, Laws Relating to the Poor 104, see No. 25, note 53. The statute, 16 Geo. 2, c. 18, §1 (1743), noted by the reporter as passed “to remedy this” (i.e. the ruling in the case that the order of a Justice was void when it concerned his own town) is set out here from a copy in JA's hand in the Adams Papers:
“16 G. 2, c. 18. Statutes at large. V. 6th, Page 501. An Act to impower Justices of the Peace to act in certain Cases relating to Parishes and Places, to the Rates and Taxes of which they are rated or chargeable. [§1][ . . . ] 'It shall be lawfull to and for all and every Justice or Justices of the Peace for any County, Riding, City, Liberty, Franchise, Borough, or Town Corporate within their respective Jurisdictions, to make, do, and execute all and every Act or Acts, Matter or Matters, Thing or Things, appertaining to their office, as Justice or Justices of the Peace, so far as the same relates to the Laws for the Relief, Maintenance and settlement of Poor Persons, &c. Not with standing any such Justice or Justices of the Peace is or are rated to or chargeable with the Taxes, Levies, or Rates within any such Parish Township or Place affected by any such Act or Acts of such Justice or Justices as afore Said.'”
At the “&c.” JA has omitted provisions covering vagrants, highways, and taxes. JA must have argued or assumed that this Act was not applicable in the colonies. For a similar Province Act, passed in 1772, see note 14 above.

Docno: ADMS-05-01-02-0008-0004-0004

Date: 1768-11


Suffolk Court of General Sessions, Boston, November 1768
Suffolk Ss:[seal]At a Court of General sessions of the peace held at Boston within and for the county of Suffolk by adjournment on Monday the seventh day of Novr. A.D. 1768.
The Petition of the Selectmen of the Town of Brookline in the county of Suffolk, setting forth2 that on the thirtieth day of January 1767 the worshipful Joseph Williams Eqr. issued a warrant in these words, vizt., Suffolk Ss.3 Complaint being made to me the Subscriber, one of his Majestys Justices of the peace for said county, by Mesrs. John Child, Aaron Davis, and Eleazer Weld, Gentlemen and Selectmen of Roxbury and overseers of the poor in said Town, that one John Chaddock alias Chadwick alias dictus Chattuck or Shattuck late of Brookline with his family, vizt. a wife and four Children, all4 in distressed circumstances, the said John being delirious so as to become chargeable to the Town of Roxbury where they have resided and5 under warning between six and seven years, praying that a Warrant may issue forthwith to remove the said John and family back to Brookline from whence they came. These are therefore in his Majesty's name to will and require you and either of you to apprehend the Body and Bodies of the said John Chattuck and family with their effects and them safely remove and convey by the best way and means you can to the constable of the Town of Brookline who is alike required to receive them and take all due care to notify the Selectmen of Brook• { 309 } line or overseers of the poor of said Town to which he properly belongs or had his last residence, that such care may be taken and provision made for their support as may be needful. And you are to remove the said Chattuck and family &c. at his own charge if able to pay the same, otherwise at the charge of the Town of Roxbury, for all which this shall be a Sufficient warrant. Fail not and make due return of this warrant and your Doings thereon to the Clerk of the Court of General Sessions of the peace for said county of Suffolk as soon as may be. Given under my hand and Seal at Roxbury this thirtieth day of January A.D. 1767 and seventh year of King Georges reign. Joseph Williams. Which was afterward delivered to John Wood a constable of the said Town of Roxbury to be executed who returned his doings thereon in these words, viz. Suffolk Ss. Roxbury January 30 1767. By virtue of this warrant I have taken the Body of the within written John Shattuck and his wife and a Bed and beding and delivered them to William Davis constable of Brooklyn. February the 3 & 4th, I have further taken three children of the said John, viz. Martha and John and Mary and two beds and beding, a Pork tub, pots and kettles, brass and pewter knives and forks, corn and meal tubs, Chairs, Cyder, Cyder-barrels &c. being all the Indoor moveables of the aforesaid John Chattuck alias John Shattuck and conveyed them to the Town of Brooklyn and delivered them to the wife of the said John Shattuck at Brooklyn aforesaid. John Wood constable. And the said William Davis constable of the Town of Brooklyn made his Indorsement on said warrant in these words: Suffolk Ss. Brooklyn, January the 30. 1767. By virtue of this warrant I have received the within written John Shattuck and his wife and bed and beding and delivered them [to] Isaac Gardner Esqr. one of the Selectmen of Brooklyn aforesaid. William Davis constable.6 And the said John Shattuck his wife and three children are now in consequence of said warrant resident in said Brooklyn at the expence of the same Town for their maintenance which ought not to be for that it is acknowledged in said warrant that the said poor had lived above six years at said Roxbury and by Law therefore were their poor and ought not to have [been] removed then7 unless lawfully warned from the same Town. Tis true there was a warning in the year 1760 hinted in the said warrant which the said Town of Roxbury relies upon for good and sufficient warning in this case, the warrant for which and the Return of it are { 310 } in these words, viz. Suffolk Ss.8 In his Majestys name you are hereby required forthwith to warn John Chaddock and family at Mr. Bourroughs, Jonathan Smith at Mr. Ebenezer Whitings, Jonathan Smith junr. at Thomas Lyons, and Mr[s?]. Campbel at Mr. Whitings, also all9 and every one of the abovesaid Persons to depart the Town of Roxbury in fourteen days or give Security to the Selectmen to Indemnify the Town from all charge that may arise by means of any or either of the said persons, and you are to make Return hereof10 to the Clerk of the General Sessions of the peace in said county together with a certificate of the place of their last abode and the time [of their] residence here as the Law directs. By order of the Selectmen of Roxbury aforesaid, Samuel Gridley Town Clerk, Augt. 1st, 1760. Suffolk Ss. August the 1st. 1760. By virtue of the within I have warn'd the11 John Chadwick and family, viz. his wife and four children, to depart this Town who came from Brooklyn and had resided in Roxbury about two months, Jonathan Smith and Jonathan Smith junr. who had resided in Town three or four months and came last from Woodstock, and Mrs. Mary Campbel who had resided in Town two months and came from Boston. All and every of the above I have warned to depart the Town in fourteen days or give bond to Indemnify the Town. Attest, per Nathaniel Davis constable.12 Whereupon the complainants say that one John Chadwick was the Person warned to depart the said Town of Roxbury by force of the first of said warrants and John Shattuck was the Person removed by force of the second of said warrants which are two different names and denote two different familys. The first of said warrants requires John Chaddock and his family to be warned to depart said Roxbury or give Security but does not mention the Persons of his family ordered to be so warned by name as it ought to have done, and the constable in his return to it says that he has warned the [said] John Chattuck and family, viz. his wife and four children, to depart said Town but has not returned their names as he ought to have done. The constable of the said Town of Roxbury is required by the first of said warrants to warn diverse persons and John Chattuck among the rest, as therein is set forth, all and every one of them to depart the said town of Roxbury in fourteen days or give security to the Selectmen to indemnify the { 311 } Town from all charge that may arise by means of any or either of the said persons. The constable of the Town of Brookline is required by the second of said warrants to receive the persons so removed and to notify the Selectmen of said Brooklyn, and yet the warrant which requires it is not directed to him as it ought to have been. The same warrant does not mention either of the three children thereby required to be removed by name as it ought to have done. The same warrant admits that John Chattuck required13 to be removed has resided in said Roxbury more than six years last past and alledges it to be under warning but does not set forth of what nature this warning was. The same warrant as the Gist of it sets forth disjunctively that the said John Chattuck properly belongs to the said Town of Brookline or had his last residence there but does not set forth either of them in certain as it ought to have done and is not traversable. The constable of said Roxbury is by the same warrant ordered to take the effects and deliver them with the Body of the owner of them which is against Law.14 The said Joseph Williams who subscribed and issued the same Warrant as a Justice of the peace was then, had been many years before and is now an Inhabitant of the said Town of Roxbury and rated for the taxes set for the poor there. The said warrant issued by Joseph Williams Esqr. is therein made returnable to the Clerk of the Court of the General Sessions of the peace and it ought to have been made returnable to the said Joseph Williams Esqr. the Justice of the peace who issued it. Wherefore the Selectmen of the said Town of Brooklyn, inasmuch as its confessd above that the said John Shattuck had lived more than six years last past before said removal in the said Town of Roxbury, for want of any sufficient warrant for warning him to depart said Town of Roxbury or giving security to the Selectmen of it, and for want of any sufficient warrant to remove him to the said Town of Brooklyn, and for the illegality of said warrant and the return thereupon, prays judgment that the said John Shattuck, his wife, and children, Martha, John, and Mary, so removed, may be returned to the said Town of Roxbury, and for the said Town of Brooklyn's expences for his wifes and three children, maintenance and other incidental necessary expences for them since their said removal, and for the costs.15 This Petition was pre• { 312 } ferred to the Court at its Sessions by adjournment on the fifth day of May A.D. 1767 when it was read and then ordered that the Selectmen of the Town of Roxbury should be served with a copy thereof, that they appear on Wednesday the tenth day of June following to shew cause if any they had why the prayer thereof should not be granted. And they being served with a copy appeared and by Robert Auchmuty Esqr. their Council said first that this honorable Court ought not to take cognizance of the matters and things shewn forth herein by the said Selectmen of the Town of Brooklyn because the same are only such matters as are properly enquirable into as error and not appertaining to the merits of the cause, and secondly that the matters and things offered and objected by the said Selectmen of Brooklyn aforsaid are not sufficient for this Court to grant the prayer of said Selectmen of Brooklyn on. Wherefore the Selectmen of said Roxbury pray the Court to dismiss this petition and for their reasonable costs. And then the same was continued to the next sessions in July following and from thence to the next Court and so from Court to Court until this time by order of Court and with the consent of parties. And they being now heard upon said pleas,16 the Council for the Town of Roxbury moved that the opinion of the Court may be taken whether there is Sufficient matter alledged in the petition of the Town of Brooklyn for the Court to proceed to the tryal of the merits, and thereupon the Court deliver it as their opinion that there is not matter sufficient in said petition whereby the Court may proceed to an hearing of the merits so far as to determine whether said Shattuck and family are the proper poor of Roxbury or Brookline. Then it was moved that said petition be dismiss'd, but the Court are of opinion that it be not dismiss'd and upon a further hearing of the parties it is Considered by the Court that the prayer of said petition be and hereby is granted and ordered that the Inhabitants of the Town of Roxbury pay and refund unto the Selectmen of the Town of Brooklyn all such charge and expence as has arisen to them for the support and Maintenance17 of said John Chadock alias Chadwick alias Chattuck or Shattuck and his said wife and children untill this time and that they be returned to the said Town of Roxbury and also pay to said Selectmen of Brookline all the Costs that have been occasioned on their application to this Court in this matter.
1. SF 102089, in unknown hand. Minimal punctuation supplied. The last page is missing from the files. The final words of the record have been supplied from the original in Sess. Min. Bk., Suffolk, Nov. 1768. See note 4517 below.
2. A separate copy of the petition in the files is addressed “To the Honorable his Majestys Justices of the Court of General Sessions of the Peace in the county of Suffolk,” and begins, “The Selectmen of the Town of Brookline in said county humbly Shew.” SF 102089.
3. The file copy of the warrant is headed, “to each or either of the constables of Roxbury within said county of Suffolk, Greeting.” SF 102089.
4. In the file copy of the warrant the reading is “are.” The file copy of the petition reads “all.” SF 102089.
5. Word omitted in the file copy of the warrant. SF 102089.
6. On the file copy of the warrant is the additional notation, “Returned Feby. 7, 1767.” SF 102089.
7. The file copy of the petition reads “thence.” SF 102089.
8. The file copy of the warrant is headed, “To Mr. Nathaniel Davis constable of Roxbury in said county, Greeting &c.” SF 102089.
9. Word omitted in the file copy of the warrant. SF 102089.
10. “Thereof,” in the file copy of the warrant. SF 102089.
11. Thus in MS. The file copy of the warrant omits “the.” SF 102089.
12. On the file copy of the warrant is the additional notation, “Filed Octr. 21. 1760.” SF 102089.
13. The file copy of the petition reads, “The said John Chattuck thereby required.” SF 102089.
14. Perhaps “against law” in the sense that the statutory provision for removal does not refer to effects. Act of 16 Nov. 1692, c. 28, §10, 1 A&R 68, set out in No. 25, note 64.
15. The file copy of the petition shows that it was signed by “Jer. Gridley for the Selectmen of said Brooklyn.”
16. The file copy of the court's opinion, “filed by consent of both the parties,” begins, “After long debate.” SF 102089.
17. The remainder of the record is supplied from Sess. Min. Bk., 7 Nov. 1768.

Docno: ADMS-05-01-02-0008-0004-0005

Author: Roxbury, town of
Author: White, Benjamin
Author: Gardner, Isaac
Author: Harris, John
Author: Goddard, Jonathan
Author: Griggs, Thomas
Author: Avery, John
Recipient: Brookline, town of
Date: 1768-11-08
Date: 1769-01-31

Brookline's Account1

Suffolk Court of General Sessions, Boston, November 1768
The Town of Roxbury to the Town of Brookline
1767     Dr.  
Jan. 30   To Isaac Gardner Esqr. for boarding Jno. Shattuck and wife 3 days to two mens watching and Attendance     18      
Feby.   To 2 days spent upon said Shattuck [account?]     8      
  To 1 Day Ditto     3      
6   To Deacon Ebenr. Davis for supplying to said Shattuck family     5   8    
  To keeping said Shattuck's horse 18 days     7   8    
  To cash to said Shattuck's wife     6      
  To ½ day his mans attendance on said Shattuck     4      
  To sundry to said Shattucks Family     3   1    
  To 2½ days Attendance on said Shattuck     10      
Mh. 2   To keeping said Shattucks horse 13 weeks @ 3 per week     1   19    
  To Danl. Sanders for watching 4 Nights with said Shattuck     6      
  To Fish and Greenwood for watching with Ditto 1 night     3      
  To Antho. Marion for watching with Ditto 4 nights     6      
  To Edward Williams for Ditto 2 nights     3      
  To George Brown for Ditto 3 nights     4   6    
  To Micah Grout for Ditto 1 night     1   6    
  To Capt. Parker for 2 [ . . . ] candles for Shattuck     1   5   ¾  
Feby. 12   To Benja. White for time and expence to Andover with said Shattuck     14      
22   To time and expence to Ditto     12   11    
  To 2 days on Shattucks Account     8      
  To his mans Attendance on Shattuck     4      
{ 314 } | view
12th   To Majr. Robert Sharp for time and expence to Andover and cash to the Doctor for said Shattuck   1   13   4    
  To 2½ days Attendance on said Shattuck     10      
  To his sons Attendance on Ditto     1   6    
  To keeping Shattucks horse     3      
  To Mr. John Harris for time and expences to Andover with Shattuck   1   9      
22   To time and expence to Andover and cash to the Doctor for Ditto   1   18      
  To Wood and other Supplies to said Shattuck and family     18   5    
  To Docr. Eliphalet Downer for keeping said John Shattuck and Attendance 8 weeks from the 23d. Feby. 1767 @ 13 per week   5   6   8    
  To Alexdr. Young for Bread and milk for Breakfasts for said Shattuck while in Goal 17 weeks @ 2 per week   1   14      
    £22   2   3   ¾2  
July 29   To Mr. Enoch Brown for 2 check shirts for said Shattuck   0   15      
Apl. 19   To Benja. White for boarding Mrs. Shattuck and daughter Mary 26 weeks at 10 per week   13   0      
  To keeping Ditto 21 weeks @ 7/4 per week   7   14      
  To keeping Shattuck 24 weeks from the last Octr. @ 8 per week   7   4      
  To keeping said Shattucks horse 25 weeks to grass @ 2 per week   2   10      
March 15   To keeping Ditto 11 weeks to hay @ 5/4 per week   2   18   8    
  To keeping Mrs. Shattuck and Daughter Mary 23 weeks @ 6 per week   9   18      
{ 315 } | view
  To nursing said Shattucks daughter Mary in Sickness   0   6   8    
  To keeping Shattuck himself 8 weeks @ 5/4 per week   2   2   8    
  To nursing Ditto in his late sickness   0   5   4    
  To Stephen Brewer for house rent for said Shattucks goods and damages done to His house   1   16      
  To Docr. Jona. Davis for medicine and Attendance for Jno. Shattuck wife and daughtr. Mary from Octr. 2. 1767 to Apl. 29, 1768   4   9   8    
  To Ditto for 1 weeks board   0   12      
    53   12      
  Brot from the other side   22   2   3   ¾  
    75   14   3   ¾  
  Deduct by order the whole keeping of the horse   7   17   11    
  Allowd by the Court and Costs.   £67   16   4   ¾  
Brookline Novr. 8. 1768. Errors Excepted per Benja. White Isaac Gardner John Harris, Jno. Goddard, Thos. GriggsSelectmen of Brookline
We the Subscribers having Attended the Selectmen of Roxbury and considered the Account exhibited by the Town of Brookline relative to the Pauper Shadwick who was removed from Roxbury to Brookline do report that the Town of Roxbury pay to the Town of Brookline Seventy one pounds fourteen shillings and 3¾3 being in full for their charges in maintaining and supporting said Pauper with their legal costs of prosecution in behalf of John Hill, Samuel Pemberton Esqr. and self John Avery.
1. SF 102089.
2. Subtotal taken at the end of the first page of the MS account.
3. This figure is £0 1s. 7d. less than the amount for which execution issued in March 1769, perhaps reflecting an incomplete computation of costs at this stage. See note 3 above.

Docno: ADMS-05-01-02-0008-0004-0006

Date: 1769-07-27

Writ of Certiorari1

Suffolk Superior Court, Boston, July 1769
[seal] Province of the Massachusetts Bay Suffolk SsGeorge the third by the grace of God of Great Britain France and Ireland, King Defender of the Faith &c.
To our trusty and well beloved Samuel Welles Esqr. first Justice of our Court of General Sessions of the peace for the said county, Greeting.
Willing for certain causes to be certified of the Record of the process Order and Sentence of a Court of general Sessions of the peace held at Boston in and for said county by adjournment on the seventh day of November last, upon a petition of the selectmen of Brooklyn in said county, then and there heard and adjudged (as it is said) before you and your Companions Justices of the same court: We therefore command you that the said Record, with all things touching the same fully and entirely as the same remains before You, You send before Us in our Superiour court of Judicature, Court of Assize and general Goal Delivery, to be held at Boston in and for the county of Suffolk on the last tuesday of August next, under your Seal together with this writ: hereof fail not; Witness Thomas Hutchinson Esquire, at Boston the twenty seventh day of July in the ninth year of our Reign, Annoque Domini 1769.
[signed] Nat. Hatch Cler.
To the Honorable His majesty's Justices of His Superior court of Judicature &c. above mention'd I herewith send the Record within mention'd with all things touching the same.
[signed] Samuel Welles
1. SF 102089, in unknown hand. The form seems to translate literally the Latin form used in England. See, for example, 1 Gardiner, Instructor Clericalis 157. It may be a local product, since it varies in detail, though not in substance, from the translated forms found in English books. See William Bohun, The English Lawyer 221–243 (London, 1732); Michael Dalton, The Country Justice 476 (London, 1746); compare Thomas Chitty, Forms of Practical Proceedings 651 (London, 2d edn., 1835).

Docno: ADMS-05-01-02-0008-0004-0007

Author: Fitch, Samuel
Date: 1770-03

Fitch's Assignment of Errors1

Suffolk Superior Court, Boston, March 1770
In the Case of the Select-Men of the Town of Brooklyn against the Town of Roxbury heard and adjudged at the Court of General Ses• { 317 } sions of the Peace held at Boston in and for the County of Suffolk by Adjournment on Monday the Seventh Day of November A.D. 1768. The Errors assigned by the Select-Men of the Town of Roxbury, which appear by the Records and Proceedings of said Court in said Case, on the Certiorari are as follows Vizt.
First, For that it appears by the Records of said Court of Sessions in said Case, that the Matters and things set forth and alledged in the Petition of the Select-Men of the Town of Brooklyn to the said Court were only Matters of supposed Error, and enquirable into as such; and that therefore the said Court; which is not a Court for the Tryal of Errors, could not by Law take Cognizance of, or determine upon the same.
2dly. The said Select-Men in their said Petition do not alledge that the Paupers therein mentioned, were not the Poor of the said Town of Brooklyn, and properly belonging to them to Maintain, nor do they shew forth any Facts whereon that Matter could be properly Enquired into and determined, or desire that it should be: And yet they pray that the said Paupers may be removed from Brooklyn to Roxbury and that the Town of Roxbury should Repay to Brooklyn the Expences they had been at in Supporting said Paupers with their Costs and the said Court Granted the said prayer of their Petition as appears by their Records of Proceedings in said Case.
3dly. The Select-Men of the said Town of Roxbury in their Answer to the said Petition Alledged, first that the said Court ought not to take Cognizance of the Matters and things shewn forth therein by the said Select-Men of said Brooklyn; Because the same were only such Matters as were properly enquirable into as Error, and not appertaining to the Merits of the Cause: and secondly that the Matters and things offered and objected by the said Select-Men of Brooklyn, were not sufficient for said Court to Grant the Prayer of said Select-Men of Brooklyn on: And the said Court Thereupon Determined and delivered their Opinion, that there was not Matter sufficient in said Petition whereby the said Court, might proceed to an hearing of the Merits so as to determine whether the said Paupers were the proper Poor of Roxbury or Brooklyn; but yet notwithstanding, the said Court, would not dismiss the said Petition (when it was moved that it should be dismissed) but sustained the same, and Granted the Prayer thereof as aforesaid; which is absurd and Contradictory: All which appears by the Records and Proceedings of said Court in said Case.
4thly. The said Court of Sessions cou'd not with any propriety or Consistancy grant the said Prayer of said Petition without Enquiring { 318 } into the Merits of said Cause and Determining whether the said Paupers were the proper Poor of the said Town of Brooklyn, or of the said Town of Roxbury: And yet the said Court did Grant the said Prayer of said Petition as aforesaid, without Entering into, or making any such Enquiry or Determination, as appears by their Records and Proceedings in said Case.
5thly. There appears by the said Records of the said Court of Sessions to be no Adjudication that the said Paupers or any of them are or were the proper Inhabitants of the said Town of Roxbury, or that they be, or should be, or ought to be supported and maintained by said Town; or that they had been illegally or improperly removed from said Town, to the said Town of Brooklyn or that the Order for removing them be Quash'd: and yet it appears, by the same Records that the said Court ordered, that the said Paupers should be returned to the said Town of Roxbury, and that the Inhabitants of said Town should pay and Refund unto the Select-Men of the Town of Brooklyn all such Charge and Expence as had arisen to them for the support and Maintenance of said Paupers; therefore the said Order of the said Court of Sessions for the Removal of said Paupers and for Refunding said Charges, is not founded on any direct Adjudication, but at best is founded on an uncertain adjudication, by Implication only; and it is repugnant and Contradictory to and inconsistant with the other Parts of said Record as beforementioned, and is altogether illegal and Erronious in Substance.
Wherefore the said Select-Men of the Town of Roxbury pray that the Order, Sentence, Judgment and proceedings of said Court of Sessions, may be Quashed, and the said Town of Roxbury restored to what they have suffered and paid in Consequence thereof and be allowed their Costs.
[signed] Saml. Fitch for the Select Men of Roxbury
1. SF 102089, presumably in Fitch's hand. The document is dated by the reference to it in Doc. VII.


Suffolk Superior Court, Boston, ca. 1769–March 1770
[seal] Province of Massachusetts Bay Suffolk SsTo the Selectmen of the Town of Brooklyn in said County Greeting
You are hereby notified that by his Majestys Writ of Certiorari bearing Test the 27th. day of July last, the Record of the Process { 319 } Order and Sentence of the Court of general Sessions of the peace held at Boston in and for said County of Suffolk by adjournment on the 7th day of November last2 upon your petition relating to the Charge and Expence of supporting John Chaddock with his Wife and Children, paupers, are removed before his Majesty in his Superior Court of Judicature &ca. now holden at Boston aforesaid for said County of Suffolk: and that the Town of Roxbury have alledged certain Errors in the said Record, and pray'd that the said Order and Judgment may be reversed annulled and vacated: and further that the same be tried and finally adjudged before his Majesty in his superior Court of Judicature &ca. now holden at Boston aforesaid for said County and that you may be present and heard thereon if you see meet.
[signed] By order of Court, Saml. Winthrop Cler.
I have Notified Benja. White and Isaac Winchester the Select men of the town of Broockline to be present a Cording to this Sitation By Reading and Suffering them to Read the Same.
[signed] Per Benja. Cudworth Deputy Sheriff
The Services 2/
1. SF 102089, signed and subscribed as printed.
2. An inadvertence for Nov. 1768, the date of the Sessions hearing. See Doc. III. The error is probably accounted for by the language of the writ itself, dated 27 July 1769, which referred to the hearing in “November last.” See Doc. V.

Docno: ADMS-05-01-02-0008-0005-0001

Editorial Note

The jurisdiction of the Court of General Sessions of the Peace in cases of bastardy originated in its role as a conservator of public morals. The effect of bastardy proceedings, however, was less to punish the guilty than to provide for the support of the innocent and save the town from charge; thus they may properly be viewed as a phase of the court's administrative powers in welfare matters. The jurisdiction was established by a statute dealing with a number of noncapital offenses, including swearing, drunkenness, burglary, breach of the peace, forgery, and perjury. The section on bastardy, after establishing pecuniary and corporal penalties { 320 } for fornication, provided, “And he that is accused by any woman to be the father of a bastard child, begotten of her body, she continuing constant in such accusation, being examined upon oath, and put upon the discovery of the truth in the time of her travail, shall be adjudged the reputed father of such child, notwithstanding his denial, and stand charged with the maintenance thereof, with the assistance of the mother, as the justices of the quarter sessions shall order; and give security to perform the said order, and to save the town or place where such child is born, free from charge for its maintenance and may be committed to prison until he find sureties for the same, unless the pleas and proofs made and produced on the behalf of the man accused and other circumstances be such as the justices shall see reason to judge him innocent and acquit him thereof, and otherwise dispose of the child.”1
Cases under this Act were a frequent item on the dockets of the Courts of General Sessions (successors to the quarter sessions), and Adams tried a substantial number of them.2 They are of interest both for the social problem which they reveal and because of the procedural steps adopted for its solution.
Jane Dotey, of “Duxborough” (Duxbury) in Plymouth County, gave birth to an illegitimate child in September 1767. In July she had been examined by Gamaliel Bradford, a Justice of the Peace, and had made oath that one Manuel Essane was putative father of the child with which she was then pregnant (Document I). On Bradford's warrant, Essane, a minor apprenticed to Rouse Bourne of Marshfield, was brought before the Plymouth Court of General Sessions then sitting and was apparently bound over to abide the event by virtue of another provision of the statute.3 Finally at the December Sessions, Jane appeared, was fined for the crime of fornication, and again made oath that Essane was responsible for her { 321 } plight. The court adjudged Essane “reputed father of the said child,” and ordered him to pay maintenance and costs, and to give bond to indemnify the towns of Plymouth, Duxbury, and Marshfield from charges for the child (Document II).4
On the motion of Adams, who had represented Essane at Sessions, the Superior Court at its March 1768 Suffolk Term ordered a writ of certiorari to issue returnable at Plymouth in May.5 Adams filed an assignment of errors (Document III), in which he attacked the Sessions proceedings on six grounds. The first three errors assigned alleged the absence from the record of any findings of compliance with the statutory requirements of accusation and examination before and during delivery. The other assignments were that the order for maintenance was either beyond the court's jurisdiction, or void for uncertainty; that as a minor Essane could not be ordered to give bond; and that the portion of the order requiring Essane to indemnify the three towns was void because there was no finding or evidence as to the child's birthplace, and because, in any event, only the town in which the birth occurred was liable for his charges.
When the case was heard at Plymouth in May, the Court quashed the order of Sessions and filed a memorandum of its reasons, an unusual item, which is printed as Document IV.6 The first reason, the omission of the child's birthplace from the record, was probably considered “jurisdictional”; that is, the fact omitted was necessary to a valid order, at least one requiring that indemnity be given to a town.7 In its second reason, that the judgment was based only on the complainant's oath, the court avoided a direct confrontation of the jurisdictional issues in Adams' first three assignments of error, stating in effect only that the facts alleged were insufficient, without saying what particular additional facts would have been necessary.8 The final reason, that the order should have required the father to indemnify only the town of the child's birthplace, could either be said to go to an excess of jurisdiction or could be considered the correction of an order inconsistent on its face.9 The presence in the Superior { 322 } | view Court file of Jane Dotey's examination (Document I), and the warrant issued by Justice Bradford on the basis of it, suggest an unsuccessful attempt to cure some of these errors by material not strictly speaking in “the record.”10
1. Act of 1 Nov. 1692, c. 18, §5, 1 A&R 52. See also notes 3, 5, below.
2. Other JA cases in addition to No. 29 and No. 30, include Johnson v. Hunter (Concord Sess. Sept. 1768), and Turner v. Reynolds (Taunton Sess. Aug. 1769). His minutes for both are in the Adams Papers. See also his diary entry for 29 July 1766: “At Boston. . . . Heard some Cases of Bastardy in the Sessions. William Douglass was charged by a Dutch girl with being the father of a Bastard Child born of her Body.” 1 JA, Diary and Autobiography317. This was the case of Susanna Strater, who was presented for and convicted of fornication at the Suffolk Sessions on 29 July 1766. She then swore that William Douglass of Boston, a minor, was the father and produced witnesses to the fact. Douglass was ordered to pay maintenance. Sess. Min. Bk., 29 July 1766. See also Hewet v. Clear, ibid. For some indication of the number of such cases, see Records of the Court of General Sessions of the Peace for the County of Worcester, Massachusetts, from 1731 to 1737 (Worcester, Mass., ed. F. P. Rice, 1882). As to the state of morality generally, see Charles Francis Adams, “Some Phases of Sexual Morality and Church Discipline in Colonial New England,” 6 MHS, Procs. (2d ser.) 477–516 (1890–1891).
3. For the warrant, dated 6 July 1767 and returned to the Sessions on 11 July, see SF 142245. The section of the bastardy statute quoted above, text at note 1, also provided that “every justice of the peace upon his discretion may bind to the next quarter sessions him that is charged or suspected to have begotten a bastard child; and if the woman be not then delivered, the sessions may order the continuance or renewal of his bond, that he may be forthcoming when the child is born.”
4. The order to give bond for all three towns was probably based on Bradford's warrant of 6 July, which gave as a reason for Essane's apprehension that “the said Child when Born May be Chargeable to the said Mother, or to the Towns of Plymouth, Duxborough or Marshfield.” SF 142245.
5. Min. Bk. 86, SCJ Suffolk, March 1768. The writ and notification to Jane Dotey, both dated 8 April 1768, are in SF 142245. They are substantially similar in form to those printed in Brookline v. Roxbury, No. 27, Docs. V, VII. The penalty for fornication provided by the section of the statute at note 1 above was a fine not to exceed £5, or whipping not to exceed ten stripes, in the discretion of the Sessions. JA received a fee of “12” (presumably shillings) from one Elisha Ford. JA, Docket, Plymouth Inferior Court, Dec. 1768. Adams Papers.
6. Min. Bk. 82, SCJ Plymouth, May 1768, N–12; SCJ Rec. 1767–1768, fol. 189. See note 141 below. See also JA, Docket, Plymouth SCJ, May 1768, Adams Papers, where JA's fee is noted as “12,” again presumably shillings.
7. As to the scope of review on certiorari, see No. 27, notes 7–97, 8, and 9.
8. For further discussion of this point, see No. 30.
9. See Edith G. Henderson, Foundations of English Administrative Law 144–145 (Cambridge, Mass., 1963).
10. For Bradford's warrant, see SF 142245; notes 3, 4, above. As to “the record,” see No. 27, notes 6–86, 7, and 8.

Docno: ADMS-05-01-02-0008-0005-0002

Author: Bradford, Gamaliel
Date: 1769-07-06

Jane Dotey's Examination1

Plymouth, 6 July 1769
Plymouth Ss. The Information of Jane Doty now Residing in Duxborough single woman taken before me Gamaliel Bradford Esqr. one of his Majestys Justices of the Peace for the said County this <Eighth> Sixth Day of July 1767.
Q. Are you now with Child.
A. Yes.
Q. Who is the father of the Child you are now Big with.
A. Mannuel Essane of Marshfield servant to Rouse Bourne <Between> on the <Seventeenth and> twenty seventh and thirtyeth Days of January Last did enter and had Carnal Knowledge of her Body two several times.
Q. Had any other man Carnal Knowledge of your Body aboute that time.
A. No nor Never in all her Lifetime.
Q. Where was the place he had Carnal Knowledge of your Body.
A. In the House My Gradmother now Lives in in Duxborough.
[signed] her
Jane X Doty
[signed] Sworn the Day and year above said before Me, Garni. Bradford Justice of peace.
1. SF 142245. The document seems to be the original in the hand of Justice Bradford.

Docno: ADMS-05-01-02-0008-0005-0003

Date: 1769-12


Plymouth Court of General Sessions, Plymouth, December 1767
Plymouth Ss. At his Majesty's court of general sessions of the peace, began and held at Plymouth within and for the county of Plym• { 323 } outh on the second tuesday of december being the eighth day of said month, in the eighth year of our Sovereign Lord George the third by the Grace of God of Great-Britain, France and Ireland, King, Defender of the Faith, &c. annoque Domini 1767.
Jane Doten [Dotey] a late resident in Duxborough in the county of Plymouth single woman, appeared at this court and confessed that she had been guilty of the crime of fornication. The court having considered her offence (she being poor) sentence her to pay a fine of twelve shillings to his majesty, or be whipped ten stripes on her naked body, to pay costs of prosecution, and stand committed until sentence be performed.
At said court Jane Doten late residing in Duxborough in the county of Plymouth single woman appeared, who having while pregnant, and now before this court made oath that Manuel Esseane was the father of the bastard child born of her body in September last. And after a hearing of the parties in the case. It is considered by the court that the said Manuel Esseane be adjudged to be the reputed father of the said child, that he stand charged with the maintenance thereof, that he pay the sum of three pounds, it being one half of the charge of her lying in, &c., for the first month. And also that he pay the sum of twenty one shillings, it being for keeping said child to the eleventh of december instant, that he pay costs of prosecution taxed at one pound, thirteen shillings and two pence. And also that the said Manuel enter into recognizance with two sureties in the sum of forty pounds that he shall pay quarterly until the further order of said court, at the rate of three shillings a week towards the support of said child. And also that he recognize in the like sum of forty pounds with sureties to secure and save harmless the towns of Plymouth, Duxborough and Marshfield from all charges and damages that may arise by said child. And that he stand committed until sentence be performed.
1. SF 142245. Subscribed: “A true copy of record examined per Ed. Winslow Junr. Cler.” In the MS the numbers of the paragraphs are written in the margin.

Docno: ADMS-05-01-02-0008-0005-0004

Author: Adams, John
Date: 1768-04

Adams' Assignment of Errors1

Plymouth Superior Court, Plymouth, April 1768
In the Case of Jane Dotey vs. Manuel Essane heard and adjudged at the Court of General Sessions of the Peace held at Plymouth within and for the County of Plymouth on the <first> second Tuesday of December being the Eighth day of said Month in the Year of our { 324 } Lord 1767, the Errors assigned by said Manual, on the Certiorari are as follow viz.
1st. It does not appear by the Record of the Judgment or Sentence of said Court of General Sessions of the Peace in said Case that Manual Essane was ever accused by the said Jane, to be the Father of the Bastard Child born of her Body, in September last, before the said Child was born.
2d. It does not appear by the Record of said Judgment or Sentence, nor by any other Record of any Proceedings in the Case, that the said Jane, continued constant in her Accusation, of the said Manual to be the Father of said Bastard Child.
3d. It does not appear by said Record of said Sentence, or Judgment, that said Jane was ever examined upon oath while she was pregnant with said Bastard Child, nor that she was put upon the Discovery of the Truth in the Time of her Travail, all of which by Law ought to have appeared.
4. The said Court have, by their Sentence aforesaid, ordered the said Manual, “that he pay the sum of Three Pounds it being the one half of the Charge of her lying in &c. for the first Month, and allso that he pay the sum of Twenty one shillings, it being for Keeping said Child to the Eleventh Day of December,” in which the said Court have exceeded their Jurisdiction they not having Authority by Law to make such an order, and if they had such Authority, in this Case the order is uncertain, insensible and void, the said Court not having ordered the said Manual to pay the aforesaid Sums to any Person whatever in certain.
5. The said Court has ordered the said Manual to enter into Recognizance with two sureties, &c. which the said Manual was then and still is by Law incapable of doing as he then was and still is an Infant under the Age of Twenty one Years
6. The said Court have by the sentence aforesaid ordered the said Manual, that he recognize in the sum of Forty Pounds with two sureties to Secure and Save harmless the Towns of Plymouth, Duxborough and Marshfield from all Charges and Damages that may arise by said Child which the said Court had no Authority by Law to do, for it does not appear by said sentence, or any Record in said Case, that said Bastard Child was born in any of those Towns, and if it did, it would still be certain that said <Town> Child could not be born in more than one of said Towns, and therefore in that Case, said Manual could be obliged only to give security to Save that Town harmless where said Bastard Child was born.
{ 325 }
Where fore the said Manual prays that the aforesaid order, Sentence, Judgment, and Proceedings of the said Court of Sessions may be quashed.
[signed] John Adams for said Manual
1. In JA's hand. SF 142245.

Docno: ADMS-05-01-02-0008-0005-0005

Date: 1768-05

Reasons for the Judgement1

Plymouth Superior Court, May 1768
Order'd that the aforesaid Judgment and proceedings of the Court of General Sessions of the peace be quash'd—1st. Because it doth not appear in the Record aforesaid where the Child aforesaid was born.
2. It appears by the Record aforesaid that the aforesaid Judgment was founded on the Oath of the said Jane and on that only.
3. The said Manuel is ordered to recognize in £40 with Sureties to save the Towns of Plymouth Duxborough and Marshfield from all Charge and Damages that may arise by the said Child. Whereas the said Court of General Sessions of the peace, if the said Manuel has been duely adjudged the reputed Father of the Child abovesaid could only have ordered the said Manuel to give Security to save the Town or Place where the Child was born from Charge for its maintenance.
[signed] S. Winthrop Cler.
1. SF 142245, in the hand of Samuel Winthrop, Clerk of the Superior Court. This is evidently the document referred to in the court's decision: “After a due inspection of the Record of the order complained of, and a full hearing of the Parties upon the Errors assigned: Judgement that the Order of the Court of Sessions be quashed for the Reasons on file on the back of the Writ.” Min. Bk. 82, SCJ Plymouth, May 1768, N–12; SCJ Rec. 1767–1768, fol. 189. The reasons actually appear on the verso of the notification to Jane Dotey, cited in note 5 above.

Docno: ADMS-05-01-02-0008-0006-0001

Editorial Note

This was a proceeding at the Middlesex General Sessions for September 1768, in which Lydia Gage accused Josiah Headley of being the father of her bastard child. Adams' docket for this term shows that he took Headley's case and that he “rec'd £1 4s. at one Time and 12s. more at another.”1 { 326 } Adams did not note the result, however, and, although some of the files of the case have survived, the records of the Middlesex Sessions for this term cannot be located. His minutes of the trial are printed here as an example of the testimony and argument in such a case. James Putnam appeared for Lydia.
In the files of the Middlesex Sessions, there remain five depositions in this case, none of them given by the witnesses in Adams' minutes.2 The depositions contain conflicting testimony as to whether Headley or Zachaus Parkes had offered Lydia £300 to accuse the other. The deponents also reported that she had at various times accused Parkes, Headley, and one Simeon Hagar, and that before Colonel Jones, presumably a Justice of the Peace,3 she had accused an unknown transient. It also appeared that she had earlier had an illegitimate daughter by Parkes, which was now being “kept” by the latter's brother Ephraim. According to one witness, she at one point threatened to accuse Ephraim because he was going to “put out” her first child, then stated that she had been forced to accuse someone other than Zachaus Parkes, lest Ephraim turn the child out.4 The pattern of instability suggested in these depositions and in the testimony in Adams' minutes is borne out by the fact that an order of the General Court dated 25 February 1762 had given Theophilus Mansfield of Weston (a deponent here) power to sell the real estate of his ward, Lydia Gage of Lincoln, a non compos mentis.5
1. JA, Docket, Concord Inferior Court, Sept. 1768. Adams Papers. The two were also bound over on the charge of fornication. See recognizances in Files, Middlesex Court of General Sessions, 1768. Office of the Clerk, Middlesex County Superior Court, East Cambridge, Mass. The child was a son born 30 March 1768 and named Josiah, doubtless in honor of the putative father. Vital Records of Lincoln 38 (Boston, 1908).
2. See Files, Middlesex Court of General Sessions, 1768. The depositions are those of James Adams, Lydia Farrar, Moses Underwood, Sarah Mansfield, and Theophilus Mansfield.
3. Both Elisha and John Jones were Justices of the Peace and of the Quorum in Middlesex County. See Whitmore, Mass. Civil List 138.
4. Deposition of Sarah Mansfield. Ephraim Parkes' testimony to the contrary appears in JA's minutes.
5. The order empowered Mansfield to sell real estate for his ward's support. See Order of 25 Feb. 1762, c. 390, 17 A&R 166. Mansfield's deposition in the Middlesex Files (note 2 above) seems to favor Headley.

Docno: ADMS-05-01-02-0008-0006-0002

Author: Adams, John
Date: 1768-09

Adams' Minutes of the Testimony1

Middlesex Court of General Sessions, Concord, September 1768
Lidia Gage vs. Josiah Headley.
Sarah Garfield.
D[eaco]n Farrar.2 Last of Deer. It is Josiah Headleys. The next Saturday, she said she was sorry she had told me what she did. Not { 327 } because it want true, but because he said he'd get her whipped. 10 days after she said if the Premisses were not fullfilled, she would tell the whole Truth. Afterwards she said Headly [hired?] her to lay it to Zack Parkes, Simeon Hagar, or some body else. Said she had 2 or 3 meetings, with Headley. Parkes told me, that Headly said he would come and settle it. At the Groaning, I heard her say that it was Josiah Headleys of Weston the Miller and Tavernkeeper. Knew that she had chargd Parkes but never mentiond it to her.
Rebecca Brown.<Deposition vide—Aug.> I talked with her before and after she went before Coll. Jones. A Month before. She said she had Promisses of £300 and other Gifts, and her Brother Robert was to receive it. That Headly asked her to lay it to Zack Parkes, Simeon Hagar, or a transient Person unknown. She had wronged her soul, by clearing Headley. She lived with me 20 Year, never afraid to Trust her. Not given to lying. Robert Gage told me a week before his death, Mr. Headly a friend of his, and he did not choose to say any Thing unless under Oath.
Mrs. Horsemore. Last Winter, Lidia said she was sorry she had been to clear him up before his Wife. Headly had perswaded her in the shed under the Tree, nobody present. She said that it was Headleys to Deacon Farrar, and got soon after the Trooping at Sudbury. I've seen him, and you never see any poor Creature take on so. Deacon Farrar asked her how she came to lay it to Zach Parks.
Susannah Gage. Wife of Robt. Gage. January. I shant tell. Tis not a Man I can have, but a Man that can pay. Headly ta[l]ked so, that he convinced my Husband she had wronged Mr. Headley. She said that it was Headleys as true as a God in Heaven. That he perswaded her, and promised her Money. She came and asked my Husband if Money was left for her.
Lidia Parks. At Mr. Underwoods as she came from Horsemores. Lidia Gage said she would not damn her own Soul any longer for any Body. Headley told me, she had better take what she had and go off, or else he'd Send her to the Devil. Sister in Law to Zach. Parks. If he had not rid her skimmington3 he had some other Way.
Sufferana Hagar. Lived in the House with Lidia Gage. I knew She { 328 } was with Child, as soon as she did. She said she never had accused him of this Child, and was not a going to. Middle of July, I knew she was with Child. Never knew H[e]adley at the House. She never told me, who was the father, but she gave me two Hints, she said if Headleys family were affronted with her for such Things, they should be affronted worse before long. Latter End of Octr. or Beginning of Novr. I told Headley. He said he would take his Gun and shoot her. But I did not think, he intended to shoot deeper than some People think he had done. His General Character very good, till this came out.
Sarah Garfield. I asked her who was the father, 30 March, in Extremity, she said Headley and no Man else. I asked her how she came to clear him before Coll. Jones. She said He promised her Money and that she should never want. As she expected to answer it before God.4
Mrs. Allen. At the Travel [Travail]. She came in to our House a few days before her Travel. I charged her. She said she was told, that if she laid it to Parks she should get nothing, that Daniel Parks had been to a Lawyer, and told her those stories. That all Zack had was made over to maintain Phoebe, i.e. her last Child. Robert Gage told me there was no Truth in the story, that Headly had never offerd a farthing.
Mrs. Gage. At the Travel, as before. Headly came to our House and said he had an Arrant [Errand?] to do to Lidia from a Gentleman. She said Twas a transient Person, and Hagar and Pucker, a poor Toad. In January Headley calld her out under the shed, and talked with her. The family suspected Headley, before she chargd any Body. Under Guardian.
Ephraim Parks. Brother to Zach and Guardian. Zach denyd it. I went to her, and Asked her if she could clear him. She said Zack is clear, and I never laid it to him and ant a going to. He has had nothing to do with me. Did not threaten to put away Phoebe, nor say that she could get nothing.
Wm. Horsemore. Town ant so devilish good to me. They need not concern themselves. She did not lay it to any Body.
Simeon Hager. James Parks. Week before Trav[ail] talked with <Lidia Gage> Headley. Said he was going to Deacon Farrar to settle that Affair. Would you have me pay, if clear? No. I'm as clear as the sun.
{ 329 }
Putnam. If the Inconstancy can be accounted for, from a natural Source, so that she is believed, it is within the Law. The only Question is whether her Charge is true.
Her weakness, no Impeachment of her Veracity.
She would tell Deacon Parks the Truth. And she told him, it was Headley. Deacon Farrar meets with Headley. Headley said it was a Matter he would consider of. Tho he denyed the Charge.
A Difficulty arises, and a great deal is to [be] made of it. The next Time she told the Deacon she was sorry she had laid it to Headley. She did not pretend to say she had chargd him wrongfully. A Temptation—a snare—a Trap.
Another Objection, she is not the most chaste Woman. A common Strum.5 She may know, notwithstanding her Inchastity, who is the father. The law does not confine it, to any Number of Times.
Another Objection that being a Lyar, will discredit her Testimony.
1. In JA's hand. Adams Papers, Microfilms, Reel No. 185.
2. Probably the Humphry Farrar in whose family Lydia's child was at the time of his baptism, 31 Oct. 1773. Vital Records of Lincoln 38. The names of most of the other witnesses, including Hosmers (“Horsemores”) and Hagars, are found in the Vital Records, showing the local nature of the affair.
3. “To ride skimmington” in rural England was to hold “a ludicrous procession” of villagers intended to ridicule a shrewish woman, an unfaithful husband, or, alternatively, the victim of such a person. OED. Here the term is apparently extended to include the conduct which would cause such ridicule to fall either upon Headley's wife or upon Lydia. In Massachusetts, the word also seems to have connoted “mobbing.” See 1 JA, Diary and Autobiography291; JA's minutes, Hodges v. Gilmore, Adams Papers, Microfilms, Reel No. 185.
4. According to the deposition of Lydia Farrar in the Middlesex Files (note 2 above), “Mrs. Sarah Garfield” was a midwife present at Lydia's labor, who asked her who the father was. 30 March 1768 was the date of the child's birth. See note 1 above.
5. “A handsome wench or strumpet.” OED.

Docno: ADMS-05-01-02-0008-0007-0001

Editorial Note

Ann Josselyne of Marlborough claimed that John Harrington of the same town was the father of her illegitimate child born in June 1768. At the Middlesex General Sessions, Concord, September 1769, she was fined five shillings for fornication, and her accusations were tried.1 After hearing evidence and the oath of the complainant that Harrington was the father, the court ordered him to pay support for the child and give bond to indemnify the town (Document I).
In the same month Samuel Fitch, acting for Harrington, moved the Superior Court sitting at Worcester for a writ of certiorari returnable at the October 1769 Cambridge term. The writ issued and the case was docketed in Middlesex County.2 The first two errors assigned by Fitch (Document II) are the same kind of omission from the record of findings of statutory requirements which Adams urged in Essane v. Dotey, No. 28. The third error, seemingly based on the reasons stated by the court for its decision in the latter case, was that the judgment of the Sessions had been founded only upon the complainant's oath. Finally, Fitch urged that the complainant { 330 } had not in fact been examined in her “travel” (travail), and that she had not accused Harrington until after the event. He had previously assigned as error the failure of the record to recite these facts, but he now seemed to be going behind the record and asserting a failure of proof.
The case was continued from term to term until April 1771, when the court held “that there is no Error either in the Record and proceedings aforesaid, or in the Rendition of the Judgment aforesaid, and that the said Record is in no wise vitious, or defective.” The judgment of the Sessions was affirmed with costs.3 After Essane v. Dotey, the question of what recitals, in addition to the complainant's oath, were necessary to the record had remained open. Josselyne v. Harrington indicates that none of the requirements of the statute were considered “jurisdictional” in the sense that the record was faulty without them. Fitch had apparently urged that the court read the record (Document I) so that the word “thereupon” in the phrase “they do thereupon adjudge” referred back to the oath only.4 The record also recites that the Sessions heard “Evidence,” a statement not present in Essane. This distinction may have been the basis upon which the Superior Court rejected Fitch's reading and upheld the record in the present case.
Adams' minutes (Document III) present the further interesting possibility that the Superior Court heard evidence on at least one of the points raised by Fitch's fourth assignment of error, despite the fact that it had seemed to find the matters there asserted nonjurisdictional in the sense that they need not appear of record. This is a possibility only, because Adams' minutes cannot be dated precisely by either internal or external evidence. The fact that they are headed “Ann Josselyne vs. John Harrington. Bastardy,” and the English rule that on certiorari nonjurisdictional questions were to be dealt with only on the basis of the record, suggest that the document dates from the Sessions.5
On the other hand, there is much to support the theory that it is a minute of proceedings in the Superior Court. It opens with a question asked by the “C.J.,” or Chief Justice, relative to the validity of circumstantial evidence as a substitute for the statutory requirement of examination during travail. Since this was precisely one of the points which Fitch had raised on certiorari, the question was a logical one to be asked at those proceedings. Moreover, the usage “Chief Justice” indicates the Superior Court. The statutes establishing the court system expressly provided such an officer for that tribunal, but did not so provide for the Inferior Court of Common Pleas, or the Court of General Sessions. In fact the presiding justice of those courts was usually known as “First Justice,” a reference to the position of his name in the commission appointing the court.6 Finally { 331 } the language of the court's decision, already quoted, is not inconsistent with the view that the court had gone behind the record as Fitch had asked. The finding of no error in “the rendition of the judgment” is stated disjunctively from the findings regarding the record,7 indicating a separate finding that there was evidence to support the judgment.
If Adams' minutes are in fact from the Superior Court, the procedure followed can be rationalized with the usual understanding of the scope of review on certiorari only on the assumption that the court ignored the English view that “jurisdictional” facts had to appear of record, but went into the questions here raised because they were “jurisdictional” in the sense that they reflected the requirements of the statute.
1. See her recognizance, dated 9 Aug. 1769, and bill of costs. Rex v. Joslin, Files, Middlesex Court of General Sessions, Sept. 1769. Office of the Clerk, Middlesex County Superior Court, East Cambridge, Mass.
2. Min. Bk. 90, SCJ Worcester, Sept. 1769, following N–79; SF 147733; Harrington v. Josselin, Min. Bk. 88, SCJ Middlesex, Oct. 1769, N–10.
3. Harrington v. Josselin, SCJ Rec. 1771, fol. 72. See also Min. Bk. 88, SCJ Middlesex, April 1771, C–8. Compare the decision of the court in No. 28, note 141.
4. See text at note 92 below.
5. As to the English rule, see No. 27, text at note 7. The court refused to hear evidence outside the record without indicating whether the matter was jurisdictional in Pond v. Medway, Quincy, Reports 193 (Mass. SCJ, 1765).
6. See Act of 26 June 1699, c. 1, §1, 1 A&R 367; Act of 26 June 1699, c. 2, §1, 1 A&R 369; Act of 26 June 1699, c. 3, §1, 1 A&R 370. As to the usage “First Justice,” see No. 27, Doc. V. See also the writ of certiorari in Harrington v. Jocelin, SF 147872; Whitmore, Mass. Civil List 79.
7. Text at note 3 above.

Docno: ADMS-05-01-02-0008-0007-0002

Date: 1769-09


Middlesex Court of General Sessions, Concord, September 1769
[seal] Middlesex Ss. Anno Regni Regis Georgii Tertii magnae Brittanicse Francae et Hibernise nono.
At a Court of General Sessions of the Peace begun and Held at Concord within and for the County of Middlesex on the Second Tuesday of September being the twelfth Day of said Month Annoque Domini 1769.
John Harrington of Marlborough in the County of Middlesex Husbandman being bound by Recognizance for his Appearance at this Time to answer to the Complaint of Anna Josslin of Marlborough aforesaid Spinster for begetting her with Child of a Bastard, (of which she was delivered in Marlborough aforesaid on the twenty fourth Day of June AD 1768) And the said John being now in Court and charged by the said Anna with being the Father of the said bastard Child born of her Body as aforesaid, denied the said Charge and Accusation; and after a full hearing of the Parties and their Evidence, it appears to the Court and they adjudge that the said Anna Josslin be admitted to her Oath, and she being Sworn, upon her Oath, in Court, says that the said John Harrington is the Father of the bastard male Child born of her Body as aforesaid.
It's thereupon Considered by the Court and they do thereupon adjudge2 the said John Harrington to be, and he is hereby adjudged { 332 } to be the reputed Father of the same Child and order that he stand chargeable with the Maintenance thereof with the Assistance of the said Anna Josslin the Mother; and that he pay the said Anna the Sum of forty eight Shillings for the first four Weeks next after the Birth of the Said Child towards the defreying the Charges and the Maintenance of the Same Child to that Time, and that he also pay her two Shillings per Week from thence to this Time, and also that he the said John pay to the said Anna from hence forward two Shillings per Week, weekly, towards the Maintenance of the Same Child untill the further Order of this Court. Also it's Ordered by the Court that the said John Harrington give Security, himself as Principal in the Sum of one hundred Pounds with two Sureties in the Sum of fifty Pounds each for his Performance of the above Order with Respect to the Maintenance of the said Child. And also that he give Security, himself as Principal in the Sum of fifty Pounds with two Sureties in the sum of twenty five Pounds each to save the Town of Marlborough, where the same Child was born, harmless and free from any Charge for the Maintenance of the said Child; And that he pay Fees and Costs of this Prosecution; Standing committed 'till performed.
1. SF 147872. Subscribed: “A true Copy as of Record. Examined per Thad. Mason Cler. Pac.” (Clerk of the Peace).
2. Italics in MS. See text at note 4 above.

Docno: ADMS-05-01-02-0008-0007-0003

Author: Fitch, Samuel
DateRange: 1769-10 - 1769-11

Fitch's Assignment of Errors1

Middlesex Superior Court, Cambridge, October–November 1769
In the Case of Ann Jocelin against John Harrington heard and Adjudged at the Court of General Sessions of the Peace held at Concord within and for the County of Middlesex on the Second Tuesday of September in the Year of our Lord 1769. The Errors Assigned by the said John on the Certiorari are as follows vizt.
1. It doth not Appear by the Record of the Judgment or Sentence of said Court of General Sessions of the peace, or by any part of the Record in said Case That the said John Harrington was ever accused by the said Ann Jocelin of being the Father of the Bastard Child born of her Body in June 1768 before the said Child was born nor 'till more than Twelve Months after:
2. It doth not Appear by the Record of said Judgment or Sentence nor by any other Record of any proceedings in said Case That the { 333 } said Ann Continued Constant in her Accusation of the said John to be the Father of the said Bastard Child, or That She was ever Examined upon Oath while She was pregnant with said Bastard Child, touching the same, nor that she was put upon the Discovery of the Truth relative thereto, in the Time of her Travail, all which by Law ought to have Appeared;2
3. It doth Appear by the Record of the said Judgment and Sentence of said Court in said Case, That The said Judgment was founded upon the Oath of the said Ann in said Court, That the said John was the Father of said Bastard Child, and upon that only;
4. The said Ann was not put upon the Discovery of the Truth relative to said Bastard Child during the Time of her Travel nor did she Charge the said John with being the Father of said Child during said Time, nor till long after.
Wherefore the said John prays That the said Order Sentence Judgment and proceedings of said Court of General Sessions of the peace, may be quashed and That he be allowed his Charges occasioned thereby and Costs.
[signed] Saml. Fitch for the said John Harrington
1. SF 147872, presumably in Fitch's hand. The paragraphs are numbered in the margin. The date has been supplied from the fact that the notification to Ann Josselin issued on 2 Nov. 1769. Min. Bk. 88, SCJ Middlesex, Oct. 1769, N – 10. Compare No. 27, Doc. VII.
2. The statutory requirements. See No. 28, text at note 1.

Docno: ADMS-05-01-02-0008-0007-0004

Author: Adams, John
Date: 1771-04

Adams' Minutes of the Testimony1

Middlesex Superior Court, Charlestown, April 1771
Ann Josselyne vs. John Harrington. Bastardy.
C.J. If there is other Evidence of Circumstances that tend to render it probable, will not that answer the End of that Prerequisite, of Examination in the Time of Travail?2
Jerusha Newton. In feby. she sent for the Man and Jno. Harrington came. She was very suddenly taken in Travel, and very bad. Midwife not there till an Hour after the Child was born. That very day before her Delivery she said Jno. Harrington was the father. She was then very comfortable and well. No Question was put, in the Time [of] her Travail. She said she wonderd how any Man could serve any Woman as Jno. Harrington did.
{ 334 }
Mary Morse. Did not examine her. There was Something Said after the Birth, of the Childs looking like Jno. Harrington.
Adonijah Newton. I went and found him at a Burying. All I had to do was to ask him to come, I did not know she was with Child. Some time after she wanted to see him again. Then I mistrusted she was with Child. He wonderd what she wanted to see him for. She told me, before the Child was born, that she was like to have a Child by Harrington.
Thos. Josselyne. Harrington Said, I f——d her once, but I minded my pulbacks. I sware I did not get it.
Rebecca Drummond. 2 Months ago. He denyed it, &c. That all the Money they had of him was for work.
Joshua Newton. I think he said she should not have no more Money than she had got. 3 or 4 Pistareens, and 10 dollars.
Gershom Newton. Knew of his coming to see her often and staying all Night. I carried a Letter from her [to?]3 the Monadnocks.4 He admired she should send to him for Money for he had left her some. He gave me a Note for £20 which I gave him up again, because he said his father would cut him off.
Never knew him there but two Nights.
Solomon Wheeler. Jno. Harrington was there once, and laid on the Bed alone. He afterwards called me a fool for telling of it. He said it would make a Talk.
1. In JA's hand. Adams Papers, Microfilms, Reel No. 185. The date is only tentatively assigned. See text at note 6 above.
2. Evidently a question by Chief Justice Benjamin Lynde, put at the beginning of Putnam's argument, as recorded by JA. See text at note 6 above. The Minute Book and files do not indicate for whom Putnam appeared, but if the witnesses that follow are his, he must have been for Ann.
3. MS torn.
4. “The Monadnocks” was a term commonly used for Mount Monadnock, or Grand Monadnock, near present Jeffrey, N.H. See 3 JA, Diary and Autobiography268–269.
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.