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Browsing: Legal Papers of John Adams, Volume 1

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.
Cite web page as: Founding Families: Digital Editions of the Papers of the Winthrops and the Adamses, ed.C. James Taylor. Boston: Massachusetts Historical Society, 2014.