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Browsing: Legal Papers of John Adams, Volume 1


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.
Cushing.4
{ 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.
Cite web page as: Founding Families: Digital Editions of the Papers of the Winthrops and the Adamses, ed.C. James Taylor. Boston: Massachusetts Historical Society, 2014.
http://www.masshist.org/apde2/