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Browsing: Legal Papers of John Adams, Volume 1

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

Editorial Note

In common with most lawyers John Adams maintained a collection of pleading forms to help in future drafting. A number of such forms exist in the Adams Papers as loose sheets among the case notes and other legal materials, but the majority of those which have survived were entered by Adams or one of his clerks in an untitled small quarto volume bound in law calf, which is referred to in the present edition as the Pleadings Book. The order of the forms, and the dates of Adams' involvement with most of the cases from which they come, indicate that he used the volume for this purpose from 1771 to 1773.1 Adams was of counsel in at least 23 of the 29 cases represented in the Pleadings Book, but he probably drafted only 7 of the forms. The rest are the work of his contemporaries at the bar. The forms are printed here as they appear in the manuscript, except { 27 } that the editors have given each case an identifying roman numeral and have supplied descriptive captions and titles where Adams omitted them. For each case, the facts and disposition, so far as they are known, and a brief summary of any matters of historical or legal significance are given in footnotes.
At first glance a collection of pleading forms looks like dull reading. The facts that lie behind the forms are seldom dull, however. For example, many of the cases presented here involve important historical events and personalities. The declarations in Richards v. Doble (Form VI) and Gailer v. Trevett (Form VII), for all their stilted technical phraseology, offer grisly accounts of the Boston mob in action, with particular emphasis on the mechanics of tarring and feathering. These two pleadings, with Palmes v. Greenleaf (Form XVI), serve as footnotes to several major Adams cases dealt with elsewhere in these volumes. There are also pleadings which show Paul Revere having trouble with an apprentice (Form XI), the maternal and paternal ancestors of Oliver Wendell Holmes engaged in a joint real estate venture (Form XIII), Adams' wealthy client Elisha Doane successfully avoiding taxes (Form VIII), and the family of Fisher and Nathaniel Ames engaged in an intramural dispute (Form XX). Many of Massachusetts' more litigious, if less well-known, citizens also make their contentious, cantankerous way through these pages. Braytons, Robinsons, Needhams, Kingsburys, Metcalfs, Halls, Greens, and Lorings were all involved in feuds that found expression in the courts.2
The pleadings, in conjunction with the other cases in these volumes, are also of interest in helping to define the scope of Adams' practice. He is widely and justly known for his defense of the British soldiers after the Boston Massacre (Nos. 63, 64), and of John Hancock in the affair of the sloop Liberty (No. 46). These and other similar matters made up only a small proportion of his cases. Day in and day out during his fifteen active years at the bar, even while occupied with affairs of great public significance, he was constantly concerned with a vast flow of actions on the order of those which make up the Pleadings Book. They ranged from minor loan transactions to the relatively large sums involved in the management of an estate or the winding up of a major business, and they involved all of the activities of colonial life. Here are cases arising from shipping, commerce, agriculture, the use and conveyance of land, the paper and iron industries, retail trade, crafts, death, and taxes. Such matters were the materials from which a lawyer gained his livelihood.3
The primary significance of the Pleadings Book is the cross section of the law in 18th-century Massachusetts which it provides. Pleading was the heart of the traditional common-law jurisprudence under which Adams practiced. No claim could be redressed unless the facts giving rise to it could be made to fit one of the common law forms of action, the centuries-old classifications in which the substantive law of England had grown up. { 28 } It was through the pleadings that substantive rights were stated in terms appropriate to one of these forms. Many of the decided cases that make up the common law are determinations of the adequacy of such statements. Further, it was the pleadings which determined the facts which the parties had to establish at the trial. Great numbers of other cases concern the relations between pleadings and facts. The 18th century marked the zenith of the formulary system. The law which Adams knew was the natural end product of a development in which “substantive law has at first the look of being gradually secreted in the interstices of procedure; and the early lawyer can only see the law through the envelope of its technical forms.”4
The pleadings which Adams collected show nearly all of the remedies given by the forms of action being applied in Massachusetts, with some changes to take account of local practices or needs. There are declarations in most of the usual English actions, including account, special and general assumpsit, several varieties of debt, ejectment, replevin, trespass to person and to lands, trespass on the case for various wrongs, and writs of entry asserting title to lands. The most significant changes were in the last class of actions, where only the rudiments of the ancient and complex English forms were retained in a simplified system that served as the basis of the Massachusetts law of real actions for a century afterward.5 Other alterations included the use of account, debt, and assumpsit for matters that in England would have been within the jurisdiction of the court of equity or the ecclesiastical courts, neither of which existed in Massachusetts, and the adaptation of replevin to do the work of a libel in rem at a time when the court of Admiralty was in great disfavor for political reasons.6
Adams' forms suggest that the Massachusetts practitioners were deficient in one important aspect of the English system—special pleading, the devious art of narrowing the issue through a series of successive pleadings.7 The Pleadings Book contains only three examples of pleas other than the general issue or a general demurrer, and in those cases there were no further pleadings beyond the replication. A study of other Massachusetts cases indicates that this was generally so. The rejoinders and surrejoinders, rebutters and surrebutters that were the glory of the English system were virtually unknown in Massachusetts. Since occasional examples of special pleading are found,8 it would seem that a taste for simplicity and a { 29 } desire to get on with the matter, rather than ignorance, account for the Massachusetts practice.
In 1859 Theophilus Parsons Jr. wrote, “In my father's time, there was a very general ignorance on this subject [pleading]. Only a few of the leading lawyers pretended to be good pleaders; and the inaccuracy or insufficiency of the pleading was one of the causes of the disorder and confusion which prevailed in the courts.”9 Since Theophilus Parsons Sr., Chief Justice of Massachusetts from 1806 to 1813, was a law student from 1770 until his admission to the bar in 1774,10 his “time” may be said to have included the years which the Pleadings Book covers. Whatever laxity developed in the aftermath of the Revolution, Adams' forms and those seen in other cases of the period do not merit Parsons' criticism in an important sense. Most of them, both in substance and formal parts, were consistent with examples found in contemporary or later English books of forms (or “precedents” as they were called); and the bar and the courts were aware of technical rules such as those against duplicity and argumentativeness. In some respects, however, the practice of Adams' day did not meet 19th-century standards. Commentators found a few of the old forms confused and oversimplified,11 and the lack of special pleading was a defect at what even American lawyers of this period considered the heart of the matter. Nevertheless, as far as they go, Adams' pleadings show that the Massachusetts bar before the Revolution was true to the English system in general, and capable of applying it in detail when pressed.
Even Parsons presumably would have found at least some of the Pleadings Book forms acceptable. After the passage just quoted, he went on to recount that his father “was himself a very good pleader, having devoted much time to the science. When he had students, every one was expected to write out, in a book prepared for that purpose, declarations, pleas, and forms, which my father had prepared or adopted. I have some of these books now; and the volumes of precedents, afterwards published for the use of the profession, by Anthon, Story, Oliver, and others, were compiled in a good degree from these books.”12
Whatever one may think of the copying out of pleadings as a method of law study, it was a means of preserving and passing on forms from one generation to the next. Undoubtedly Adams' students and other lawyers copied forms from the Pleadings Book. By some such means a few of Adams' pleadings survived to appear in the numerous “volumes of precedents” which the 19th century brought forth. In 1802, Benoni Perham, a young Massachusetts law student, compiled and published at Boston the first of these works, American Precedents of Declarations, Collected Chiefly { 30 } from Manuscripts of Accomplished Pleaders; Digested and Arranged under Distinct Titles and Divisions; and Adapted to the Most Modern Practice. The volume contained the declarations in Holden v. Conner (Form I), Waldo v. Gridley (Form II), Hill v. Whiting (Form IV), and Richards v. Doble (Form VI). These pleadings appeared with only slight changes, and all but Waldo were attributed (with some unfairness to their real drafters) to “J. Adams.” In addition, numerous similarities may be observed between forms in the Pleadings Book and those taken by Perham from Parsons and other lawyers.
Perham's work, revised by John Anthon, appeared in at least two later editions.13 In 1828 at Boston, Benjamin Lynde Oliver brought out an enlarged version of American Precedents entitled Forms of Practice; or American Precedents in Actions, Personal and Real. Anthon and Oliver both reprinted Adams' pleadings with Perham's other forms. In the fifth revised edition of Forms of Practice, published in 1905 when the old system had all but run its course, those forms still appeared.14
In the 19th century, as the practice of law in the United States grew more sophisticated, the works of the great English pleading authorities—Chitty, Stephen, and others—were published in numerous American editions and became the standard for several generations of lawyers.15 Under this influence American pleading developed into a science that rivaled or even exceeded the English practice in complexity. At the same time the native tradition of simplicity and adaptability derived from the 18th-century forms was preserved in American Precedents and its successors. Native jurists like Stearns and Dane cited the work. In at least one instance, one of the Adams pleadings appearing in it was discussed at some length as a useful and unique Massachusetts practice still followed there.16 Adams' Pleadings Book thus helped to carry forward into the busy 19th century the law of an earlier era in which flexibility was as important as technicality.
1. Adams Papers, Microfilms, Reel No. 186. In subsequent footnotes the editors have identified as far as possible the hands of JA's law clerks, but the identifications are all tentative. Inside the front cover of the Pleadings Book JA wrote this motto: “Vitanda est improba Siren, Desidia,” from Horace, Satires, bk. II, Satire 3, lines 14–15 (“You must shun the wicked siren Indolence”). Pages 2–31 of the volume were numbered by JA. The editors have supplied page numbers in square brackets for citations of the pleadings from page [32] to page [62], where JA's forms end. The remainder of the volume is largely blank, but toward the middle are some additional pleading forms, which from internal evidence seem to have been copied in after the Revolution. These forms and a few pages of notes on astronomy are all in a later, unidentified hand, possibly in more than one hand. At the back, and running the other way in the volume, are four pages of pleadings in the hand of John Quincy Adams, including the form for a libel in Admiralty for seamen's wages in the United States District Court for the District of Massachusetts, dated 5 Nov. 1793.
The separate pleadings forms found in the Adams Papers include Roby v. Stone (declaration in trespass for mesne profits); Reading v. Framingham (plea to complaint under the poor laws); Potter v. Burchsted (double pleas of justification by leave of court in suit by widow of non compos mentis: (1) sale by guardian; (2) dower in deceased's mother); Hoyt v. Brown (declaration in case against deputy sheriff for failure to keep vessel under attachment); Apthorp v. Stanbridge (plea of tender in indebitatus assumpsit); Capen v. Spear (declaration in trespass for cutting trees and plea of justification); Church v. Bunney (form of summons where goods are attached); Epes v. Flagg (Latin form of plea of non cepit, the general issue in replevin). All are in Adams Papers, Microfilms, Reel No. 185. Pleadings from the Adams Papers and the court files are printed as documents in the following cases in the present work: King v. Stewart, No. 2; Apthorp v. Gardiner, No. 9; Prout v. Minot, No. 13; Chelsea v. Boston, No. 26; Brookline v. Roxbury, No. 27; Essane v. Dotey, No. 28; Josselyne v. Harrington, No. 30; Emmons v. Brewer, No. 33; Pierce v. Wright, No. 36; Margaret v. Muzzy, No. 40; Petition of Lechmere, No. 44; Sewall v. Hancock, No. 46; Dowse v. 33 Hogsheads of Molasses, No. 47; Dowse v. 19 Casks of Molasses, No. 49; Surveyor General v. Logs, No. 54; Rex v. Corbet, No. 56; Rex v. Preston, No. 63.
2. See Forms XV, X, XXIII, IX, XVIII.
3. For further discussion of JA's practice, see Introduction.
4. Sir Henry S. Maine, Dissertations on Early Law and Custom 389 (N.Y., 1886). As to the forms of action generally, see Frederic W. Maitland, The Forms of Action at Common Law 1–11 (Cambridge, 1936); Fifoot, History and Sources, passim; Sutton, Personal Actions 1–33, 46–71; Plucknett, Concise History 353–377.
5. See Forms IV, XIII, XV.
6. See Forms IX, XVIII, XIX, XXIV.
8. See, for example, the pleadings in Ware v. Brick, a case in which Jonathan Sewall and Francis Dana were of counsel, in Theophilus Parsons, Precedents (MS) 58–61, MH-L.
9. Theophilus Parsons, Memoir of Theophilus Parsons 221 (Boston, 1859).
10. See Parsons, Memoir 23–24.
11. See notes 171, 5640, 9377, below. As to the technical rules in Massachusetts, see No. 9.
12. Parsons, Memoir 221. See the elder Parsons' own MS book of “Precedents” in MH-L.
13. American Precedents of Declarations (N.Y., 2d edn., John Anthon, 1810); (Brookfield, Mass., 3d edn., John Anthon, 1821). Perham (1777–1804), Harvard 1800, had assistance from an unnamed young lawyer who was probably Joseph Story. See Benjamin L. Oliver, Forms of Practice; or, American Precedents, in Actions, Personal and Real vi (Boston, 1828); MH-Ar. Anthon (1784–1863), Columbia 1801, was a leader of the New York bar who assisted in founding the New York Law Institute in 1830. DAB.
14. Benjamin L. Oliver, Forms of Practice; or, American Precedents, in Personal and Real Actions 37, 281–282, 578 (Boston, 5th rev. edn., 1905).
15. See, for example, Joseph Chitty, Treatise on Pleading and Parties to Actions (N.Y., 1809); id. (Springfield, Mass., 16th Amer. edn., 1879, 1882–1885); Henry J. Stephen, Principles of Pleading in Civil Actions (Phila., 2d Amer. edn., 1831); id. (Phila., 9th Amer. edn., 1867); Edward H. V. Lawes, An Elementary Treatise on Pleading in Civil Actions (Portsmouth, N.H., 1808); John F. Archbold, Practice of the Court of King's Bench in Personal Actions, and Ejectment (N.Y., 1823); id. (N.Y., 2d Amer. edn., 1827).
16. See Asahel Stearns, A Summary of the Law and Practice of Real Actions 178–179 (Boston, 1824), discussed in note 13note 29 below. For other examples of the citation of American Precedents, see 1 Dane, Abridgment 167; 5 id. at 214.
{ [facing 30] } { [facing 31] }

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

Author: Adams, John
DateRange: 1771 - 1773

The Pleadings Book

Case on a Bill of Lading vs. Master for not delivering the Plaintiff's Goods freighted on Board the Defendant's Vessell.
Asa Holden vs. Charles Conner1
For that the said Charles on &c.—received on board his said Ship called the X X and whereof the said Charles was Master (H[ogshea]ds, Casks &c.) containing the Goods in the schedule annexed—And on the &c.—at —— signed a certain Note in Writing called a Bill of Lading and undertook (the Dangers of the sea excepted) to deliver the said —— to the Plaintiff he paying the customary Freight and afterwards, vizt. on —— the said Charles arrived in said ship at said ——. Yet he has not delivered said Goods &c. tho the Plaintiff hath often requested it, and has been always ready to pay the Freight aforesaid, but refuses so to do.
Case. By Freighter vs. owner for the Embezzlement of the Master upon a Bill of Lading.
Waldo vs. Gridley2
John Waldo of Boston &c.3 vs. Isaac Gridley. In a Plea of Trespass on the Case, for that the said John on &c.—at Boston aforesaid, shipped { 32 } on Board the said Isaac's Snow, Mermaid, then bound on a Voyage in the said Isaac's service, to Jamaica, a Quantity of Gold and silver vizt 8 Guineas, 1 Pistole, and 23 Dollars all of the Value of £19 lawfull Money with Reuben Hussey the said Isaac's servant, and Commander of said Vessell for said Voyage and for whose Conduct in said Service, the said Isaac is answerable, to be transported in said Vessell on the Plantiffs Account and Risque, to Jamaica, the Danger of the Seas only excepted, and there to be delivered to the Plantiff, his order, or assigns, he or they paying Freight therefor two Pr.Cent with Primage and Average accustomed:4 And the said Reuben then and there in said { 33 } Capacity, signed a Bill of Lading, according to the Custom of Merchants,5 thereby engaging for the Delivery of said Gold and Silver in manner aforesaid; and upon the Conditions aforesaid, whereby the said Isaac, according to the Custom of Merchants then and there became obliged that said Gold and Silver should be (the Danger of the seas only excepted) safely kept, transported and delivered as aforesaid, and then and there, promised the Plantiff accordingly. And the Plantiff in Fact saith, that the said Isaac's Master of said Vessell, in said Vessell and in said Isaac's Service, arrived safe at said Jamaica with said Gold and Silver, that the said Gold and Silver was not safely kept, but by the said Isaac's Master aforesaid and the Crew of the said Isaac's Vessell, for whom in such Respects he is answerable, was there on board said Vessell converted to their own Use, and imbezzled and was never delivered to the Plantiff, nor to his order nor assigns, though often requested thereto, and though the Plantiff was always ready to pay the Freight, and Primage and average aforesaid; by means whereof, the said Isaac, according to the Custom of Merchants became obliged to pay the Plantiff his Damage occasioned thereby (which the Plantiff avers, amounts to —— L.M.) on demand, and accordingly on —— &c. —— at Boston aforesaid, promised the said John to pay him the same on Demand, Yet the said Isaac, tho requested has never paid the same but neglects and refuses to do it. To the Damage &c.6
Octr. Court 1751 NB. This Declaration was drawn by Mr. Pratt, Mr. Gridley pleaded in Abatement, but the Plea was overruled by the Court. Issue was joined, and after a full Hearing the Case was committed to the Jury, who found for the Defendant Costs.7
{ 34 }
[Case on a bill of lading against the owner.]
[Langdon v. Barber]8
3. Bac. 591. Bottom.9 3. Mod. 321. Boson vs. Sandford.10 1. Reading Clerk's Instructor 371. For a Precedent of a Declaration vs. Master.11
Summon Wm. Barber of Charlstown &c.—to answer Edward Langdon of Boston &c.—in a Plea of Trespass upon the Case for that the { 35 } said Wm. at a Place called Patuxent River, in our Province of Maryland vizt. at Boston aforesaid,12 on the 8th day of last December was owner and Proprietor, of a Vessell, being the good Brigantine called the Fair Lady, whereof was then Master under God for the then present intended Voyage, Abiel Lucas, and then riding at Anchor in Patuxent River aforesaid, in which Brigantine the said William was used and accustomed to carry Goods, Wares, and Merchandises, for a reasonable Hire, from Port to Port: And the said Edward, there afterwards, on the same day, put, shipped and loaded, in good order and well conditioned in and upon the said Brigantine, then, by Gods Grace, bound for Boston in New England, 500 Bushells of good merchantable Wheat, of the Value of £133 6s. 8d. L.M. to be delivered in like good order and well conditioned, at said Port of Boston, the dangers of the Seas only excepted, unto the said Edward, or to his assigns, he or they paying Freight for said goods with Primage and Average accustomed, and the said William, then and there promised the said Edward to deliver the said Wheat accordingly. Now the said Edward in fact says, that the said Brigantine afterwards sailed from said Patuxent River, with the said Wheat on board in good order and well conditioned, and arrived safe at said Port of Boston with said Wheat in like good order and well conditioned on the 17. day of December last; yet the said William, tho often requested neither by himself nor by any other Person for or under him, ever delivered the said Wheat to him the said Edward, or to his assigns, tho the said Edward was always there ready to receive the same, and to pay Freight therefor, with Primage and Average accustomed, but the said Abiel Lucas the said Master and Commander of said Brigantine, and in the service of the said William, and for whose Embezzlements and Conduct in such Respects the said William is answerable, there afterwards on the same 17th day of December last, embezzled the said 500 Bushells of Wheat and converted it to his own Use. By means whereof the said William by Law and by the Custom and Usage of Merchants, became obliged to pay the Plantiff his Damages occasioned thereby (which the Plantiff avers, amount to £133 6s. 8d. L.M.[)] on demand and promised the said Edward accordingly at said Boston on the day of December last, to pay him the same on demand; Yet the said Wm. tho requested has never paid the same but neglects to do it. To the Damage &c.
{ 36 }
Ejectment. By a posthumous Daughter, on the seizin of her Father.
Hill vs. Whiting13
Summon J. Whiting, to answer to Abiel Hill, &c. in a Plea of Ejectment, wherein the Plantiff demands against the said John the Possession of a certain Tract of Land containing &c. and bounded &c.
Whereupon the Plantiff saith, that Ebenezer Hill late of said Wrentham, Husbandman deceased Intestate, Father of the Plantiff, in a Time of Peace, vizt. on the 30th day of October Anno Domini 1732 was seized of the Demanded Premisses in his Demesne as of Fee taking the Esplees14 thereof to the Yearly Value of four Pounds and on the same day, afterwards at said Wrentham, the said Ebenezer died so seized thereof and Intestate, leaving Susanna his Widow pregnant with the Plantiff, who was born afterwards at said Wrentham on the sixteenth day of February Anno Domini 1733, and after the Death of the said Ebenezer Hill, Father of the Plantiff, and the Birth of the Plantiff as aforesaid, the demanded Premisses, and the Right and Property thereof, descended by Law to the Plantiff, Child and Heir of the same Ebenezer deceased, and she ought accordingly to be in { 37 } quiet Possession thereof, but the said John, since the Death of the same Ebenezer, hath unjustly entered into the demanded Premisses, and still unjustly, deforces and holds the Plantiff out. To the Damage &c.
[Haynes v. Shaw]15
Indeb. Ass. on an Account annexed. Summon F.S. &c. to answer S.H. &c. in a Plea of Trespass on the Case, for that the said F.S. at Boston aforesaid on the 14th. day of April instant being indebted to the said { 38 } Ind. Ass. for Money, laid out, and expended for Defendant. S.H. in the sum of £155 19s. 9d., as by the account to the Writ annexed appears, did then and there promise the said S.H. to pay him that sum on demand. And for that the said F.S.Ind. Ass. for money had and received afterwards, that is to say, on the same day at Boston aforesaid, was indebted to the said S.H. in another sum of £150 19s. 9d. for the like sum of Money, before that Time, at the special Instance and Request of the said Francis, and to the Use of the said Francis, paid, laid out and expended, and being so indebted, he, the said F.S. in Consideration thereof, afterwards, that is to say, the same day, at Boston aforesaid, promised the said S.H. to pay him the same on demand. And, whereas the said F.S. afterwards, that is to say, on the same day, at Boston aforesaid was indebted to the said Samuel H. in one other sum of one hundred and fifty two Pounds, Nineteen Shillings and Nine Pence for the like Sum of Money, by him the said F.S. before that Time had and received, to the Use of the said S.H., and being so indebted he the said Francis, in Consideration thereof, that is to say, on the same day, at Boston aforesaid, promised the said S.H. to pay him the said last mentioned sum on demand; yet the said F.S. tho requested hath not paid the said S.H. said sums.
Insim. Comp. And for that the said F.S. and S.H. at said Boston, on the [] day of [] accounted together concerning diverse sums of Money, before that Time due and owing from the said F.S. to the said S.H. and then in Arrear and unpaid, and on the Account so stated, the said F.S. was then and there found in Arrear, on the whole to the said S.H. the further sum of £200 16s. 8d. sterling, which the Plantiff avers to be equall to [] Lawfull Money, and the said F.S. at said Boston, on the said last mentioned day, in Consideration thereof, promised the said S.H. to pay him that sum also, on demand: And for that the saidQuant. Valebat. S.H. at said Boston, afterwards vizt. &c. had sold and delivered to the said F.S. at his special Instance and request, 13 Barrells of Flour, and other Goods, Wares and Merchandises, other than those contained in the Schedule, or Account annexed but of the same Quantity and Quality, { 39 } and the said F.S. then and there in Consideration thereof, promised the said S.H. to pay him there for all such Sums of Money, as the said Flour, and other Goods, Wares and Merchandises in this Count mentioned were reasonably worth, whenever he should be thereto requested; Now the said S.H. in Fact saith that the said 13 Barrells of Flour last mentioned, were well worth, £22 5s. 6d. L.M., and the other Goods, Wares and Merchandises last mentioned, were well worth the several sums set against the like Articles in the annexed schedule or account amounting in the whole to [] L.M. of all which the said F.S. there afterwards on the same day had due Notice from the said S.H. and thereby became obliged to pay him the same sum on demand and then and there promised so to do.
Quant. Mer. And for that the said S.H. at said Boston on the [] day of [] had16
Trespass. Assault, Battery, Wounding, Imprisonment, Tarring and Feathering.
Richards vs. Doble17
Attach &c. Joseph Doble of Boston &c. Mariner, to answer unto Owen Richards of said Boston Yeoman, in a Plea of Trespass, for that { 40 } the said Joseph, on the Eighteenth day of May last [1770] at Boston aforesaid, with Force and Arms an Assault on the Body of him the said Owen made and him did then and there violently beat, wound, bruise, and evil entreat, so that his Life was thereby put in great Danger, and He the said Joseph did then and there take and imprison him the said Owen, and him in Prison for a long Time, vizt. for the space of six hours, detained against Law, and the Custom of our Realm, and he the said Joseph then and there, did also grievously abuse the said Owen; forcibly took and placed him in a Cart, and stripped him naked to his Skin, and with Force as aforesaid, did tear off, from his Body, and take from him, his Hatt, Wigg, Coat, Waistcoat, and Shirt, and also a gold Sleeve Button, two Handkerchiefs, his Pocket Book, with sundrie Papers therein of the Value of [] vizt. an original Note of Hand, for seven Pounds, Ten Shillings, and Sundrie, original Receipts for Moneys paid, and other Papers of Value, also one Piece of Gold Money, called a Johannes,18 and two Spanish milled Dollars in Silver, being all of the Value of Thirty Pounds lawfull Money, none of which Things so taken from him the said Owen, have ever been returned to him again and He the said Joseph did then and there also cover and besmear the said Owen, Head, Face, and naked Body, with Tar and cover him over with Feathers, upon said Tar, and cruelly and inhumanly set fire to said Feathers; and then and there dragged said Owen in said Cart, through diverse Streets of said Town of Boston, and from one End of said Town to the other, for the Space of Six Hours, as aforesaid, and fixed a Label to his the said Owens Breast, with Writing thereon importing that he the said Owen was a common Informer, and in that Condition exposed him the said Owen { 41 } to the Contempt and Resentment of our liege Subjects, and as a public Spectacle, thro said Town, and other Outrages and Enormities, on him the said Owen, He the said Joseph then and there committed, against our Peace, To the Damage &c. £1000.
Trespass, Assault, Battery, Wounding, Imprisonment tarring and feathering.
Gailer vs. Trevett.19
Attach &c. Eleazar Trevett Junior and Benjamin Trevett, Merchants, Daniel Vaun Mariner, all of Newport in the County of Newport and Colony of Rhode Island and Providence Plantation, and David Bradley, Pool Spear, Taylors, and David Provence Infant and Edward Mathews Mariner all of Boston in our County of Suffolk. To answer unto George Gailer of Boston aforesaid Mariner, in a Plea of Trespass, for that the said Eleazar Trevett Jnr., Benjamin Trevet, Daniel Vaun, David Bradley, Pool Spear, David Provence, and Edward Mathews, at said Boston in the Evening of the twenty Eighth Day of October last, together with diverse other Persons to the said George Gailer unknown, with Force and Arms, an assault, on the Body of the said George Gailer did make, and then and there with Force as aforesaid did strip the said George Gailer naked, tar and feather his Skin, and carry the said George Gailer naked, tarred and feathered, as aforesaid in a Cart about said Boston for the space of Three Hours, and with Clubbs, Staves, and a hand saw did then and there strike him the said George Gailer, sundry heavy and grievous Blows, upon the said George Gailers naked Body, and greatly bruise, and wound him and hit him the said George Gailer diverse grievous Blows, with Stones: By Reason of all which the said George Gailers Life was put into great Hazard and Danger, and greatly despaired of, { 42 } and many other Enormities, and Cruelties, the said Eleazer Trevett Jnr., Benja. Trevett, Daniel Vaun, David Bradley, Pool Spear, David Provence, and Edward Mathews, with others unknown to the said George Gailer did then and there commit, on the said George Galer, against the Peace of our Lord the King and to the Damage &c. £2000.
Debt for Taxes, by Collector vs. an Inhabitant.
Ruggles vs. Doane.20
Summon Elisha Doane of Welfleet Esqr., to answer unto Samuel Ruggles of said Boston, Housewright, in a Plea of Debt, for that the said Elisha in the Year of our Lord Christ 1765 and 1766, was an Inhabitant of said Town of Boston and rateable to the Province, County and Town Taxes and was by the Assessors of said Town duely rated to Province, County, and Town Taxes, the several sums following, to wit for the Year 1765 the sum of Nine Pounds, Six Shillings and Three Pence, and for the Year 1766 the sum of £6 11s. od. which sums together make the sum of £15 17s. 3d. for his Proportion of Province, County, and Town Taxes in said Year, and the said Samuel was the same Year, duly chosen and sworn a Collector of Province, County and Town Taxes, in the same Town, and had the Rates aforesaid, made on the said Elisha, given him to collect; and the Time of Payment to the respective Treasurers is long since elapsed, and the said Samuel hath paid to the respective Treasurers all the sums given him to collect for those Years, and of all this the said Elisha hath had Notice from the said Samuel, whereby and by Force of an Act of this our Province, made in the fourth Year of our Reign intituled an Act to enable the Collectors of Taxes in the Town of Boston to sue for and recover the Rates and Taxes, given them to collect in certain Cases,21 the said Elisha became indebted to the said { 43 } Samuel in the said sum of £15 17s. 3d., and an action accrues to the said Samuel to recover and have the same sum, yet the said Elisha, tho often requested, hath never paid the same sum, but detains it. To the Damage &c.
Plea Nil Debet. And the said Elisha comes and defends &c. and saith, he owes nothing to the said Samuel in manner and Form as within declared and thereof puts himself on the Country.22
Account vs. Bailiff of Goods, and Receiver of Monies.
[Green v. Green]23
1. Mallory's Mod. Ent. 48. Tit. account.24
Summon George Green &c. to answer to Joshua Green, &c. Administrator of all and singular, the Goods and Chattells, Rights and Credits { 44 } which were of Anna Green late of said Boston, Widow deceased intestate in a Plea of Account for that the said George at said Boston, on the first day of July Anno Domini 1765, the said Anna being then living, and from the said first day of July to the Thirty first day of December Anno Domini 1768 was the Bailiff and25 Receiver of Monies of the said Anna, she being all that Time living, during which Time the said George received of the Monies of the said Anna at said Boston, one hundred Pounds, by the Hands of Samuel Cotton, Thirty Pounds by the Hands of Thaddeus Wyman &c. [] in the whole { 45 } amounting to Two Thousand, Three hundred and seventy Pounds Thirteen shillings and Ten Pence of lawful Money to render a reasonable Account thereof to the said Anna whenever he should be thereto requested; nevertheless the said George, tho often requested, never rendered such reasonable Account to the said Anna in her Lifetime, nor to the said Joshua Administrator as aforesaid since his Intestates decease, tho requested, but still neglects to do it: And for that the said George at said Boston on the first day of July Anno Domini 1765 and from the said first day of July to the Thirty first day of December Anno Domini 1768, the said Anna being all that Time living, was the said Anna's Bailiff, and during all that Time had the Care and Management of all the Goods, Chattells, Wares, and Merchandise and Cash contained in the Schedule hereto annexed, amounting in the whole to the further sum of 2677 Pounds 11s. id. of lawfull Money more to merchandise and make Profit thereof for and to render a reasonable Account thereof to the said Anna when he should be thereto requested; yet the said George (although requested) never rendered such reasonable Account to the said Anna in her Lifetime nor to the said Joshua Administrator as aforesaid, though requested since his Intestate's decease, but still neglects and refuses to do it. To the Damage.
Case for a malicious Prosecution.
Needham vs. Kingsbury.26
2. Ins. Cler. 53. 4. 5. 6. 7.27 1 Mod. Ent. 160.28
Attach Seth Kingsbury of Walpole, &c. to answer Ezekiel Needham of Wrentham, &c. in a Plea of Trespass upon the Case, for that the { 46 } said Ezekiel, now is a good, honest, true and faithfull subject of Us, and hath all his Lifetime hitherto, carried and behaved himself among all his Neighbours, and other our faithfull subjects, and those of our Predecessors, so as to be esteemed by them of a good Name, Fame, Credit, honest and faithfull Conversation,29 and good Behaviour; and all his Lifetime hitherto hath lived, remained, and continued, without { 47 } any Blott, or having committed any Falshood, Perjury, or other Crime or Misdemeanor whatever, and hath30
Case. For inticing and seducing an Apprentice from his Master whereby he lost his Service.
Paul Revere vs. James Lowrie31
Attach the Goods or Estate of James Lowrie now residing in Boston32 in our same County Mariner, to answer Paul Revere of said Boston, Gentleman, in a Plea of Trespass on the Case, for that one { 48 } David Mosely of said Boston an Infant was by Indentures made by and between himself, by Consent of his Uncle on the one part, and the Plaintiff on the other part, on the 17th of March AD 1770, lawfully bound an Apprentice to the Plaintiff to serve him faithfully for and during the Term of four Years from the same Date, and the Plaintiff in said Indenture did covenant to teach and instruct the said Apprentice or cause him to be instructed in his the said Paul Revere's Trade [or?] Art of Goldsmith and Engraver and also to find and provide for the said Apprentice sufficient Meat, Drink, Washing, Lodging and Cloathing during the said Term; which said Indenture duly executed by &c. on the part of the said Apprentice in Court shall be produced; of all which the said James Lowrie was well knowing, yet he maliciously contriving and intending to deprive the Plaintiff of the benefits of said Apprentice, and to render it impossible for the Plaintiff wholly to perform his Covenant aforesaid did at Boston aforesaid on 27th of Septr. AD 1771 (the said Lowrie being then Master of an outward bound Vessel) seduce the said David Mosely to leave the Plaintiff's service, and did carry him away and has ever since detained and concealed the said David so that the Plaintiff cannot find, and take him, and the said James Lowrie hath oftentimes since (tho requested) refused to deliver said Apprentice to the Plaintiff and still unjustly detains and conceals the said Apprentice whereby the Plaintiff hath lost the benefit of his said Apprentice and is unable to perform his Covenant aforesaid and hath suffered much Pain and Anxiety of Mind, all which is to the Damage of the said Paul Revere, as he saith, the sum of £[150?].
Ruddock vs. Aylwin33
2 Mod. Ent. 1. Covenant on a Charter Party.34 2 Mod. Ent. 211. Debt on Ditto.35
{ 49 }
Attach Thos. Aylwin &c. and John Scollay, &c. to answer Abiel Ruddock &c. in a Plea of Debt, for that the said Thomas and John, by their Indenture of Charter Party of affreightment made at Boston aforesaid, on the fourth Day of May Anno Domini 1770, executed between the Plaintiff, by the Name of Abiel Ruddock, &c. owner of the Schooner, Two Friends on the one Part and the Defendants by the Names of the several Persons whose Names are subscribed and their Seals fixed to the said Charter Party of the other Part, which Part sealed with the seals of the said Thomas and John, and to which their Names are subscribed, the said Abiel brings into Court,36 the date being the same Day and Year, he the said Abiel granted and demised { 50 } the said schooner, to freightment to the said Thomas and John, by the Names of them subscribed thereto, and that they in like manner hired the same from the said Master for a Trading Voyage, to be made by the Grace of God, to Chalure Bay, Gaspee &c. and from thence to be delivered at Boston,37 as follows—vizt. the said Abiel for himself, his Executors and Administrators covenanted, promised and agreed to and with the said Merchants, subscribing said Charter Party, that the said schooner is tight and stanch and strong.38 And is and shall be during said Voyage with all that is necessary that it shall be lawful for the Defendants or their Correspondents to load and unload and reload the schooner with such Goods Wares and Merchandizes as they shall think proper during said Voyage, and they the said Merchants subscribing the said Charter party for themselves their Executors and Administrators aforesaid, covenanted and agreed with the said Abiel his Executors, Administrators, and Assigns: will not only load unload and reload as aforesaid but that they will in case she is seized in a counterband Trade and condemned pay to the said Abiel his Executors or Administrators the full and just sum of £340, that they will also pay the Port charges and the charges for victualling and manning this said schooner during said Voyage: and that they will well and truly pay or cause to be paid unto the said Abiel his Executors, Administrators, or assigns the sum of £15 per month and so in proportion for a greater or less time and the said Ab[i]el firmly by said Charter party obliged and bound himself his Executors, Administrators, and Assigns, and his said Vessel together with all the furniture and freights to the said Men: subscribing said Charter Party, their Administrators, Executors, and Assigns in the penal Sum { 51 } of one hundred pounds and to the true performance of everything in said Charter Party, on the part of the said Merchants subscribing said Charter Party to be performed, they the said Merchants by their Charter Party firmly obliged themselves their Executors, Administrators, and Assigns and the Goods as39 aforesaid intended to be loaded to the said Abel his Executors, Administrators and assigns in the like penal sum of £100 as by the said Charter Party doth and may more fully appear. Now the said Abiel in fact says that he the said Abiel on his part hath well and truly performed his part of said Charter Party that the said Schooner was tight staunch and strong, and was so during said Voyage and before the voyage was ended as aforesaid four months and more were elapsed, the said Abiel further avers that the said Thomas and John have not nor ether of them paid or caused to be paid to the said Abiel the £15 aforesaid agreed to be paid whereby an action has accrued to the said Abiel to require and have from the said Thomas and John the said £100 nevertheless the said Thomas and John tho requested have never paid the same but neglect &c.
Ejectment on a Covenant.
Wendell vs. Williams40
Summon Nathaniel Henshaw and Jona. Williams &c., to answer unto Oliver Wendell of Boston Merchant, in a Plea, wherein he demands vs. the said Nathaniel and Jonathan, one undivided third { 52 } Part of all that Farm or Tract of Land, commonly called and known by the Name of Hog Island, both the greater and the lesser, lying within the Bounds and Limitts of the Town of Boston aforesaid containing by Estimation, 530 Acres and bounded on all Sides by the Salt Water,41 together with one undivided Third Part of all the Buildings thereon standing, and of all the Appurtenances thereto belonging; whereupon the said Oliver complains and says that on the Nineteenth Day of September A. 1769 one Samuel Sewall Esqr. was seized and possessed of the whole Farm or Tract of Land aforesaid, with the Appurtenances, in his Demesne as of Fee, and being so seized and possessed thereof, the said Samuel by a certain Indenture of Bargain and Sale of that Date, made and duely executed by and between the said Samuel, on the one Part, and the said Oliver and one Jonathan Jackson on the other Part, then, at Boston aforesaid, granted, sold and conveyed the same Farm or Tract of Land with the Appurtenances to the said Oliver Wendell and Jonathan Jackson, to hold the one Third Part thereof to him the said Oliver and his Heirs forever, and the other two Third Parts thereof to him the said Jonathan Jackson and his Heirs forever, one Part of which said Indenture, under the Hand and seal of the said Samuel, duely executed, acknowledged and recorded, is in Court to be produced;42 by Force whereof the said Oliver Wendell and Jonathan Jackson, then and there entered into and became seized, as Tenants in Common, of the said Farm or Tract of Land with the appurtenances, to wit, the said Oliver of one { 53 } undivided Third Part thereof, in Fee Simple, and the said Jonathan Jackson, of the other undivided two Third Parts thereof in Fee Simple, and the said Oliver ought still to be in quiet Possession of his said undivided Third Part thereof; nevertheless, the said Nathl. Henshaw and Jona. Williams have since unjustly and without Judgment of Law entered into the whole of the Premisses, and disseised the Plaintiff of his said undivided Third Part thereof, and still unjustly deforce him thereof, and altogether hold him out of the same. To the Damage &c. £1000.
Plea of Tender. Ind[ebitatus] Ass[umpsit] and Quantum Mer[uit]. 2 Counts.
Jno. Coburn vs. Rob. White.43
2 Mall. Mod. Ent. Vid. of pleading a Tender under Tit. Pleadings in the Table.44
3 Inst. Cler. 134. 136.45 Bac. Abr. Tit. Tender.46 2 Mod. Ent. 310.47 5 Bac. Abr. 1.48
{ 54 }
Suffolk Ss.49 Common Pleas April 1771.
Coburn plt. vs.White Deft. } Defendant's plea of Tender &c.
And the said Robert White comes and defends &c. and as to seven pounds six shillings and Eight Pence, parcell of said sum of Nine Pounds, 14s. 8d. in the first Count in said Declaration mentioned, saith the said John ought not to recover against him the said Robert any further Damages than the said £7 6s. 8d. because he says that the said Robert from the Time of making his said Promise for Payment of said Sum of £7 6s. 8d. (which promise he made for Cash or Money lent him by the said John and for Eight Weeks board, as severally charged in the Account annexed to the Writ) was always ready and now is ready to pay the same to the said John; and he the said Robert before the day of suing forth the said Johns said Writ, vizt. on the Fifth day of January last, at said Boston, offered to pay and tendered the said sum of £7 6s. 8d., then and there to the said John, and the said John then and there refused to accept the same sum; and the said Robert hath ever since been ready to pay the same sum to the said John, and now brings the same into Court ready to pay the same to the said John if he will accept it: And all this the said Robert is ready to verify:50 Wherefore the said Robert prays Judgment, if the said John, shall have and recover of him on this suit any further Damages than the said sum of £7 6s. 8d. as aforesaid; and for his Costs.
[signed] S[amuel] Q[uincy] for Defendant
And as to the sum of Two Pounds Eight Shillings, Residue of the said £9 14s. 8d. in said first Count in said Declaration mentioned the said Robert says he never promised the said John in manner and Form as he declares against him and thereof puts &c.
[signed] S.Q.
And the said John likewise.
And the said Robert White comes and defends &c. and as to the { 55 } said £7 4s. in said second Count in said Declaration mentioned saith the said John ought not to have and recover any further Damages against him than the said £7 4s. Because he says, that from the Time of making his said Promise for Payment of said sum of seven Pounds, four Shillings (which said Promise he made for Eight Weeks Board in the said John's House) he was always ready and still is ready to pay the same to the said John; and he the said Robert before the Purchase of the said Johns Writ, viz. on the Fifth day of January last, at said Boston, offered to pay, and then and there tendered to the said John said sum of £7 4s., and the said John then and there utterly refused to accept the same; and the said Robert hath ever since been ready to pay the same Sum to the said John, and now brings the same into Court ready to be paid to the said John, if he will receive it; and all this the said Robert is ready to verify; wherefore, the said Robert prays Judgment if the said John shall have and recover against him on this suit any further Damages than the said sum of Seven Pounds four Shillings as aforesaid, and for his Costs.
[signed] S.Q. pro Defendente
And as to the sum of £2 8s. in said second Count in said Declaration mentioned, the said Robert White saith he never promised the said John in manner and form as he declared against him and thereof puts &c.51
[signed] S.Q.
And the said John likewise.52
Writ of Intrusion
Brayton vs. Robinson53
Attach Eliza. Robinson &c. to answer unto Israel Brayton of Swansey &c., in a Plea of Ejectment, wherein he demands against the { 56 } said Eliza, a Messuage54 and Twelve Acres of Land in Swansey bounded &c. [] and is bounded all round by Land now in the Possession of the said Israel, and its appurtenances, which demanded Premisses were formerly in the Possession of one John Brayton of said Swansey, and which the said Israel Claims as his Right and Inheritance and into which, the said Elizabeth Robinson had no { 57 } Entry, but by Intrusion which she made upon the same after the Death of Ruth Brayton who was the Wife of the said John Brayton and which Messuage and Lands were assigned to the said Ruth as her Dower of certain Lands which formerly belonged to the said John Brayton by Preserved Brayton to whom the Reversion of the demanded Premisses belonged, and who devised them to the Demandant his Son and his Heirs,55 Whereupon the said Israel saith, that the said Preserved Brayton in a Time of Peace in the Reign of our late Royal Grandfather56 was seized of the demanded Premisses in his Demesne as of Fee, taking the Profits thereof to the Yearly Value of Ten Pounds by the Year and being so seized afterwards vizt. on the Eighth Day of December Anno Domini 1753 by his Deed of that Date in Court to be produced, assigned and sett off, to the said Ruth Brayton the demanded Premisses as her Dower in a certain Messuage of about 100 Acres of Land in said Swansey of which the demanded Premisses, is part, and of which same Messuage and Land before that time, and since the Intermarriage of the said John and Ruth, the said John Brayton who was deceased before the date of the same deed, was seized in his Demesne as of Fee, and delivered Seisin thereof to the said Ruth and thereupon the said Ruth, then and there, vizt. at said Swansey in the said Eighth Day of December, A.D. 1753, accepted of said demanded and assigned Premisses in full satisfaction of her said Right of Dower and entered into the same, and held them as Tenant in Dower of her said Husband, John Brayton, on the said assignment of the said Preserved Brayton as aforesaid and was seized thereof in her Demesne as of Freehold57 in a Time of Peace in the Reign of our late Royal Grandfather, taking the Profits thereof, to the amount of Forty shilling by the Year, and afterwards vizt. on the 7. day of Decr. A.D. 1759. the said Preserved Brayton to whom the Reversion in Fee of the demanded Premisses belonged, and of which he was then seized at Swansey aforesaid made his last Will and Testament in Writing and therein devised his said Reversion to the demanded Premisses, to the Demandant and his Heirs, and afterwards, vizt. on the 21. day of May A.D. 1761 the said Preserved at said Swansey died seized of the said Reversion to the demanded Premisses, by Force of which Devise the said Israel became seized of said Reversion in Fee simple, and afterwards vizt. on the 26. day of July A.D. { 58 } 1770 the said Ruth Brayton at said Swansey died seized of said Estate in Dower, and into which demanded Premisses the said Elizabeth had no Entry, but by an Intrusion therein made by her as aforesaid, after the death of the said Ruth Brayton who held as aforesaid, and after the Death of the said Ruth Brayton, the said Israel Brayton ought to be in quiet and peaceable Possession and Seisin of the demanded Premisses; yet the said Eliza. having intruded therein unjustly holds the Demandant out of the Possession of the demanded Premisses, To the Damage &c.
Quaere of this Writ?58
Trespass. Assault, arrest and Imprisonment.
Palmes vs. Greenleaf59
Summon Stephen Greenleaf &c. to answer to Richard Palmes of Boston &c. in a Plea of Trespass, for that the said Stephen at said Boston in the 1st. day of August last with Force and Arms, and without any lawfull Cause did assault, arrest, and imprison the said Richard, and without any lawfull Cause or Warrant did there hold and keep the said Richard in Prison and in his Custody, till to obtain his the said Richards Discharge he was by the said Stephen obliged to enter into a certain Recognizance in the sum of a hundred Pounds to appear at the then next Superior Court of Judicature, Court of Assize and General Goal Delivery to be holden at Boston in and for said County of Suffolk, and other Enormities the said Stephen then and there did to the said Richard contrary to Law and against our Peace and to the Damages &c.
{ 59 }
Case vs. Master for not transporting Goods according to Bill of Lading.
McLean vs. McEwen.60
Attach James McEwen &c. to answer unto Donald McClean of our City of N. York &c., Physician, in a Plea of Trespass on the Case, for that the said James on the 15th. day of Feb. A.D. 1766 at N. York aforesaid had received in and upon the Snow61 called the Peggy, whereof the said James was then Master, bound on a Voyage from New York aforesaid to Leith in that Part of our Kingdom of Great Britain called Scotland, in good order and well conditioned, diverse Goods of him the said Donald, vizt. one Tierce containing 255 Pounds Weight of Snake Root of the Value of £43 Lawfull Money &c.—to be transported by him the said James in the said Snow from New York aforesaid to Leith aforesaid and there to be delivered to Hector McClean, or his assigns for a certain Hire, by the said Hector to the said James to be paid, thereupon, vizt. one Pound Twelve Shillings Sterling, in Consideration whereof the said James afterwards vizt. on the same 15. day of Feb. aforesaid at said Boston, promised the said Donald that he the said James would carry and transport for the said Donald the said Goods from N. York aforesaid to Leith aforesaid and the same Goods to the said Hector McClean or his assigns at Leith aforesaid would safely and securely deliver (the Dangers of the Seas only excepted): And the said Donald avers that the said { 60 } James after making the Promise aforesaid vizt. on the first day of April Anno Domini 1766 safely arrived in the Snow aforesaid at Grenoch in that Part of our said Kingdom of Great Britain call'd Scotland, from N. York aforesaid with the said Tierce and Barrell safe on board the said snow: And altho the said Hector McClean from the Time of making the Promise aforesaid by the said James, was always ready and still is ready to pay the said James the said Hire agreed to be paid him as aforesaid, for transporting the said Goods as aforesaid: yet the said James did not carry the Goods aforesaid to Leith aforesaid, nor hath he ever delivered the same or any Part of them to the said Hector McClean, or to his assigns according to his Promise aforesaid or in any manner performed his said Promise, tho often thereto requested, but hitherto hath wholly refused and still doth refuse to deliver the said Goods as aforesaid or to perform his said Promise.
To the Damage &c.
Debt. For a Legacy.
Loring vs. Loring.62
Summon Mary Loring &c. as she is Executrix of the last Will and Testament of [Policarpus Loring] to answer Thomas Loring of &c. as he is Administrator of all and singular the Goods and Chattells, { 61 } Rights and Credits which were of Lydia Loring late of said Plimton Widow deceased intestate, in a plea of Debt, for that one Caleb Loring, of said Plimton, on the 22d day of January A.D. 1731, at said Plimton, made and duely executed his last Will and Testament in Writing, which Will was afterwards duely proved and approved, which Will and the Probate thereof in Court shall be produced, and in and by said last Will, the said Caleb among other things gave to the said Lydia, who was then living and the said Caleb's wife £40 a year, yearly to be paid her, by his two Sons Ignatius and Policarpus (the said Mary's aforesaid Testator) so long as the Furnace in Plimton should be improved and She the said Lydia remain his the said Caleb's Widow, in Consideration that he did in that his Will aforesaid, give his two Sons aforesaid his eighth part of said Furnace. And the said Caleb in and by his said Will gave and bequeathed unto his two Sons aforesaid (who were then in full Life) their Heirs and Assigns his eighth part of the Furnace in Plimton aforesaid, with the priviledges thereto belonging; and thereby ordered them to pay to his aforesaid Wife, the sum of £40 yearly and every year, so long as the Furnace should be improved, and his said Wife should remain his Widow: And afterwards at said Plimton, viz. on the 22d day of December A.D. 1732 the said Caleb died, living [leaving?] his said Wife and two Sons; and afterwards there the said Ignatius and Policarpus by virtue of the Devise aforesaid in said last Will to them made, entered into and became possessed of the said eighth part of said furnace, as Jointenants in Fee simple, and thereupon became jointly chargeable to pay the said Annuity or Legacy of £40 a year to the said Lydia as aforesaid. And the said Ignatius and Policarpus continued during their joint lives jointly to improve the said Eighth part of said Furnace: And there afterwards on the 9th day of April A.D. 1742 the said Ignatius died, living his Mother aforesaid the said Lydia and his aforesaid Brother Policarpus, whereupon both the Right to the Eighth part of the Furnace aforesaid and the obligation to pay the Legacy { 62 } or Annuity aforesaid, survived to the said Policarpus, who became bound to pay the same to the said Lydia according to the Will aforesaid.
Now the Plaintiff in fact says that the furnace aforesaid in Plimton has been improved from the day of the date of said Caleb's aforesaid Will, untill this day, and the said Lydia lived and remained unmarried, the Widow of the said Caleb, from his death until the 28th day of March A.D. 1771. Nevertheless the said Ignatius and Policarpus never paid the Legacy aforesaid, or any part thereof, to the said Lydia, during the Life time of the said Ignatius and Policarpus, nor did the said Policarpus in his Life time ever pay the said Legacy or any part thereof to the said Lydia, during his Lifetime, nor has the said Mary Loring Executrix as aforesaid since her Testator's decease ever paid the said Legacy or any part thereof, to the said Lydia in her Life time, or to the said Thomas Loring Administrator as aforesaid since his Intestate's decease, but detains it.
To the damage of the said Thomas in his said Capacity as he saith £2000.
[signed] Adams
[Case. Assumpsit against an executor for a legacy.]
[Gore et ux. v. Gould]63
Summon J[oseph] G[ould] of &c. Sole Executor &c. to answer J. Gore. and A. his Wife, in a Plea of Trespass on the Case, for that the said J[ohn] G[ould] Testator, at &c. on &c.—made and duely executed his last Will and Testament in Writing and therein among other Things, bequeathed to his daughter the said Abigail the Sum of £13 6s. 8d. lawfull Money, to be paid her in three Years after his decease, vizt. £4 8s. 10d. thereof to be allowed and paid her by the said Testators Son John, £4 8s. 11d. thereof by his son Samuel, and £4 8s. 1 id. thereof by his said son Joseph, whom he therein appointed sole Executor, of his said Will: And after making and executing his said Will the said John Gould the father at said &c. on &c.—died seized and possessed of a real and personal Estate sufficient to pay all his funeral Expenses and Debts and to pay and satisfy all his Bequests and Legacies in his said Will and afterwards to wit on &c.—at &c.— { [facing 62] } { [facing 63] } { 63 } the said last Will, was by the said J[oseph] Executor as aforesaid, presented to the then Judge of the Probate of Wills &c. for said County, to whom the Probate thereof appertained, and the same last Will was by the same Judge, then and there duely proved and approved an authenticated Copy of which Will and the Probate thereof in Court shall be produced and the said Joseph then and there accepted the said Trust, and undertook the Administration, of the said Testators Estate, according to the Tenor and Intent of said Will, and received all the said Estate into his Hands for that Purpose and thereby became obliged to pay the Legacy aforesaid to the Plaintiff according to the Will and Intent of said Testator and in Consideration thereof, promised at &c.—on &c., but hath not paid it tho [requested?] often and at &c.—on &c.
To the Damage &c.
Debt. For not exhibiting a true Inventory of the Testator's Effects.
Woodward vs. Fisher64
Attach &c. D[aniel] Fisher [i.e. as executor of Jeremiah Fisher] to answer Richard Woodward and D[eborah] his wife in a plea of Debt, for that the said J. on the 5th Day of Apl. made his last Will and Testament, and therein appointed his Son in Law N. Ames and his Son D. Fisher joint Executors of that his last Will &c. and thereby { 64 } gave and bequeathed to the said D[eborah] among other things an uncertain residuary Legacy and on [] died, leaving a considerable Estate there and elsewhere, both real and personal, and among many other things leaving a Bond under the Hand and Seal of S. Laucher,65 &c. bearing Date, wherein and whereby the said S. Laucher bound himself to the said J.F. who was then living in the Sum of £80, conditiond per the payment to the said J. (his Executors &c.) of the Sum of £40 13 4 of L[awful] m[one]y with law[ful] Interest therefor on &c.; which Bond was the property of the said J.F. at his Death and thin [i.e. then] due and wholly unpaid. And the said Daniel undertook to execute the said Will (the said N. the other Executor in said Will having died before the Testator at said Dedham) and on &c. presented the said Will to the Honble. T. Hutchinson Esqr. Judge and Probate of Wills for the County66 &c., who on [] comitted the Administration of the said J's Estate, accordingly to his Son in Law N. Ames, and his Son D. Fisher Executors in the same Will named, well and faithfully to execute the said Will and to administer the Estate of said Deceased according thereunto, and to make a true and perfect Inventory of all and singular the Goods, Chattles &c. of said Deceased and to exhibit the same into the Registry of the Court of Probate for the County &c. at or before the Day—And also to rendir a plain and true Account of said Administration upon Oath, and the foremention'd Bond then came to the said D[aniel]'s Hands and Knowledge—Yet the said D. did not give Bond pursuant to the Law in that Case provided to pay the Debts and Legacies of the said J. and tho the Judge of Probate &c. did not enlarge the time for the said D's rendering into his Register's Office a full and true Inventory of the said J's whole Estate upon Oath beyound the said Day of &c. and notwithstanding the Honble. T.H. Esqr. on Judge on —— caused the said D to be cited to appear at the Probate Office &c. to exhibit more particularly a full and true Inventory of the Estate of the said J. yet the said D. has not exhibited into the said Office an Inventory of the said Bond, or any Sum of Money due to said Estate for or upon it altho' the said D. before &c. had { 65 } demanded and received the principal and Interest due upon said Bond of the said S. Laucher, whereby and by Force of the Acts of this Province in that case provided67 the said D has forfeited to the Plaintiff the sum of £3200 for thirty two Months Neglect therein from &c. to —— which he has not paid but unjustly detains to the damage ——.
[signed] Adams
Case. For a false Return.
Pierpont vs. Phipps.68
Summon David Phips of Cambridge in our County of Middlesex Esqr. and Sheriff of said County of Middlesex to answer Robert Pierpont of Boston in said County of Suffolk Gentleman in a plea of Tres• { 66 } pass upon the Case, for that the said Robert by the Consideration of our Justices of our Superior Court of Judicature Court of Assize and general Goal Delivery holden at Boston within our County of Suffolk, and for our County of Suffolk, on the lastt Tuesday of August in the eleventh Year of our Reign, recoverd Judgment against William Barber in our County of Middlesex Merchant for the sum of £227 16s. 2d. L[awful] M[one]y of <Massachusetts> Great Britain, Damage and for the sum of three Pounds, Seven Shillings and two Pence Lawfull Money of the Province of Massachusetts Bay, Cost of Suit, as to us appears of Record, and thereupon afterwards vizt. on the eleventh Day of September in the eleventh Year of our Reign, took out of the Clerks office of our said Court our Writ of Execution in Form as by the Law of this Province is prescribed69 directed to the Sheriff of our said County of Middlesex, his under Sheriff or Deputy, returnable to our said Superior Court of Judicature Court of Assize and General Goal delivery holden at Boston within our said County of Suffolk, upon the third Tuesday of February there next and at Boston aforesaid, on the same eleventh day of September, in the said eleventh Year of our Reign, delivered the same to one Joseph Butler, then being and untill the return thereof and ever since continuing to be one of the said David's Deputy Sheriffs, for whose default and misconduct in this said Office the said David is answerable70 which was by the said Joseph accordingly returned to the same Court in the following words and Figures vizt. “February 18 1772 Received Fifty two pounds Fourteen shillings on this Execution and order the officer to return this Execution so far satisfyed Robert Pierpont.
“Middlesex Feby. 18th 1772 I return this Execution but in part satisfyed as above by order of the Creditor Jos[ep]h Butler, Deputy Sheriff,” as to us appears of Record.
{ 67 }
Whereupon the said Robert Pierpont, afterwards vizt. on the twenty Third day of March in the twelfth Year of our Reign took out of the Clerks Office of the same Court our Alias Writ of Execution for one Hundred eighty eight pounds five shillings and ten pence Lawfull Money of Great Britain, and said sum of three Pounds seven shillings and two pence Lawfull Money of the Province aforesaid Costs of suit in form as by the Law of this Province is in such Cases prescribed71 directed to the Sheriff of our said County of Middlesex, his under-sherriff or Deputy returnable to our superior Court of Judicature, and general Goal Delivery holden at Boston within our said County of Suffolk upon the last Tuesday of August then next and the said Robert afterwards at said Boston, on the same twenty third day of March in the twelvth Year of our Reign delivered our same alias Writ of Execution to the said Joseph Butler being then and ever since one of the said Davids Deputy Sheriffs for said County of Middlesex to be by him executed served and returned to our same Court according to our Command therein given: And the said Joseph might and could have executed served and returned the same accordingly, Yet the said Joseph Butler in no wise regarding his said office but contriving and fraudulently intending, him the said Robert in this behalf to injure, and deceive and him to hinder and wholly deprive of the Obtaining his Debt and Damages aforesaid, afterwards viz. on the twenty fifth day of August Anno Domini 1772 falsely and fraudulently made return of the same Execution to our same Court in the Words and figures following vizt. “Middlesex Ss. April [ . . . ] Received £100 L[awful] M[one]y in part of the within Execution equal to seventy Five Pounds Sterling.” Robert Pierpont. [“]Middlesex Ss. August 25, 1772 Received one Hundred Pounds of Lawfull Money in Part Satisfaction of this Execution and paid the same over to the Creditor and took his Receipt as above therefor, the Creditor declining to levy this Execution on the real Estate of the Debtor72 and having directed me not to take the Debtor's Body and I not being able to find any Goods or Chattels of the Debtor for the further Satisfaction of this Execution, do return it satisfied in Part as above mentioned. Joseph Butler Deputy Sherriff[”]
{ 68 }
And the said Robert avers that the said last mentioned Return is false and fraudulent, and that in Truth, the said Robert the Creditor aforesaid never did direct him the said Joseph Butler not to take the said William Barber the aforesaid Debtor's Body and the said Robert also further avers that after the delivery of the said last mentioned Execution to the said Joseph Butler and before the Return day thereof the said Joseph was able to find and well and easily might and could have found Goods and Chattels of the said Barbers the aforesaid Debtor within his the said Butlers Precinct in the further and full Satisfaction of that Execution by which false and fraudulent return the same Robert is not only deprived of his Remedy for the obtaining of the Damages aforesaid and Costs aforesaid against the said Barber, who always after the return last aforesaid in a place unknown to the said Robert hath been hiding and skulking and hath wholly concealed Person Goods and estate so that they cannot be come at but also the same Robert his Damages yet unpaid being £113 55. 10d. of L[awful] M[one]y73 of the Province aforesaid and the further sum of Three Shillings and nine Pence like Money of said Province for the two Executions aforesaid so as aforesaid recoverd both wholly Lost. To the Damage of the said Robert as he saith two Hundred Pounds.
[Case for diminution of water in a stream.]
Clark vs. McCarney.74
Attach Michael McCarney, &c. to answer Richard Clark, &c. in a Plea of Trespass on the Case, for that one James Boies of said Milton { 69 } Gentleman on the Twenty ninth day of June A.D. 1765, was seized in Fee, and possess'd of a certain Paper Mill in said Milton,75 with its appurtenances, erected and standing upon or near to Neponsit River, and also of the Right and Priviledge of, in, and unto the whole of the Stream of said River, and of the Head or Pond of Water therein, upon which Pond, or near to the same, the said Paper Mill stands, and from which Pond, or Head of Water the same Paper Mill was, and is supplied with Water to carry and work the same: and being then so seized and possessed of the said Paper Mill and its appurtenances, and of the said stream, Pond, and Head of Water, He the said James Boies, on the same 29. June A.D. 1765. at said Milton, by his Deed of that Date under his Hand and Seal, duely executed, acknowledged and recorded, and in Court to be produced, for a valuable Consideration in said Deed mentioned, among other Things, granted and conveyed to the said Richard Clark, and to his Heirs and Assigns forever in Fee simple, the one Moiety or half Part in Common and undivided of the said Paper Mill, and the Appurtenances thereto belonging, together with the one Moiety or half Part of all the said James's Right and Interest in the Stream of Water aforesaid, the said Paper Mill to have the commanding Part of said Stream, from the first of May to the first day { 70 } of October following Yearly,76 and the equal half of said stream the remaining Part of the Year forever. To Hold the said granted Premisses to him the said Richard, his Heirs and Assigns forever. By virtue of which said Grant, the said Richard then entered into, and became possessed, of the said granted Premisses, and hath ever since held the same. That since the making the Grant aforesaid to the said Richard, another Paper Mill hath been erected upon the same Stream and is supplied with Water from the same Pond or Head of Water aforesaid: That on the Thirtyeth Day of July last, at said Milton, the Water in said Neponsit River was so low, that it was not sufficient to supply both said Mills, and keep them both going in a proper Manner, at the same Time: Whereupon the said Richard, who was then and there improving his said Mill in making Paper, finding that the Water failed and that there was not sufficient to keep his said Mill going and at Work in a proper Manner, unless the other said Mill last built as aforesaid, which was then going, and the Water drawn off to supply it, was stopped, then and there went to the said Michael, who was then actually in the occupation and Improvement of the said other Mill, and keeping the same going, and drawing off the said Water, to supply the said other Mill, and acquainted him the said Michael with the Premisses, and that there was not sufficient Water to supply both the said Mills at that Time, and that his the said Richards Mill must stop, for Want of sufficient Water to keep it going unless he the said Michael would shutt his Water Gate and stop his Mill in order to give him the said Richard the whole Use and Command of the said Stream for that Time according to the Grant made to him as aforesaid: and he the said Richard then and there requested the said Michael to shut his the said Michaels Water Gate and to stop his said Mill accordingly, for that Time, and for the Purpose aforesaid: that the said Michael then and there absolutely refused to shut his said Water Gate and to stop his said Mill, tho thereto requested as aforesaid; but continued his said Water Gate open and to draw off the Water of said Stream from said Pond, and Head of Water therein and to keep his said Mill going: By means whereof the said Richard had not sufficient Water left to him to keep his said Mill going, and at Work in a proper manner, but was greatly hindered and retarded in the Use of his said Mill and in his Business, and his said Mill was Stopped for want of sufficient Water, { 71 } and he could not proceed in his Business of making Paper for the space of 30 days. To the Damage &c. £150.
Plea in Abatement77
Suffolk Ss. Court of Common Pleas Octr. A.D. 1772.
Richard Clark Plaintiff
Michael McCarney
And the said McCarney, by Josiah Quincy Jnr. his attorney comes and defends &c. When78 &c and prays oyer of the said Deed of the { 72 } said James Boyes, to the said Richard Clarke, mentioned in the Plaintiff's said Writ and Declaration, and hath it, and the same is read to him the said McCarney in the Words and Tenor thereof, which appear by the said Deed filed in the Case; which said Deed being read and heard, the said McCarney saith that the Plaintiff's said Writ and Declaration are bad and ought to abate.
1. Because by the Plaintiff's own shewing in his said Writ and Declaration, that one James Boies is tenant in Common with the Plaintiff in the said Paper Mill, and in the said Right Priviledge and Interest, of and in the said Stream of Water, mentioned in the Plaintiff's said Writ and Declaration, which said James ought by Law to have joined in the said Action, brought against the said McCarney.79
2ly. Because by the said Deed of the said Boies to the said Clark in the Case, it appears, that the said Boies and Clark are Jointenants of the said Paper-Mill and the same Right, Priviledge and Interest in the said Stream of Water, which said Boies ought by Law, to have joined in the said Action, brought against the said McCarney.
3. Because by the Plaintiff's own shewing in his said Writ and Declaration he made a Demand upon the said McCarney for the whole Use and Command of the said Stream for that Time mentioned in the Plaintiff's Writ and Declaration: Whereas the said pretended Grant therein mentioned was only of the Commanding Part thereof; and for this supposed Denial, of this unwarrantable Demand of the said Clark, he hath brought his said Action.
4. Because the said Clark in his said Writ and Declaration, hath not anywhere suggested, or properly set forth, that the said McCarney had any Right or Authority to shut down said Water Gate, or stop said last erected Mill, whereof one Hugh McLean, and the said James Boies were at the Time of the supposed Denial and ever since Tenants in Common in Fee simple, and thereof then and ever since in actual and full Seisin and Possession.
5. Because the said McCarney would have been a Trespasser and Wrong Doer had he complied with and obeyed said Demand of the said Clark, for a Non Compliance of which, he hath brought his said Action. All which the said McCarney is ready to verify: wherefore he prays Judgment of the Writ and Declaration aforesaid; that the same may abate and for his Costs.
{ 73 }
Debt upon a Bond.
Metcalf vs. Hall80
For Pleadings in a similar Case vid. 3 Ld. Ray. 275 &c.
Defendant pleads as follows.
Suffolk Ss. Common Pleas. July A.D. 1772
Hannah Metcalf Plaintiff vs. Jeremiah Hall Defendant.
{ 74 }
And the said Hall comes and defends &c. and craves oyer of the said obligation and it is read to him &c. He likewise craves oyer of the Condition of the same obligation, and it is read to him in these Words, Ss.
“The condition of this obligation is such, that if the above bounden Jeremiah Hall, his Heirs, Executors, Administrators or Either of them, shall and do, for his, or their Part, in all manner and every Thing, or Things, well and truly observe, perform, fulfill, accomplish, all and singular the Covenants and Agreements whatsoever, which on his or their Part are or ought to be observed, as menshened in a sarting Articals and Agreements indented and baring Evin Date with theis Presents made between Jeremiah Hall, on the one Part and Hannah Metcalf and Debory Met[calf] on the other Parte, whose Names are abovementioned, and that in and by all Things, According to the said Articals, with ought Covent,81 then this present obligation to be void and of none Effect, or else to remain in full Force and vartor [virtue] during there Lives.”
Which being read and heard, the said Jeremiah Hall saith that the said Hannah and Deborah Metcalf, their Action aforesaid thereof, against him ought not to have or maintain, because he saith, that he the said Jeremiah Hall, for his Part, in all Manner and in every Thing and Things well and truly hath observed, performed, fullfilled, accomplished, all and singular, the Covenants and Agreements, whatsoever which on his Part, are, or ought to be observed, as menshened in a Sarting Articals and Agreements indented and baring even Date with the said Bond, made between Jeremiah Hall, on the one Part and Hannah Metcalf and Debory Metcalf on the other Parte, whose Names are mentioned in the same Bond, and in and by all Things, according to the said Articals, with ought Covent.82 And this the said Jeremiah { 75 } Hall is ready to verify: Wherefore he prayeth Judgment, if the said Hannah and Deborah their Action aforesaid thereof against him, ought to have or maintain.
[signed] J[osiah] Q[uincy]
Replevin. Of a Sloop hypothecated.
Rob. Mercer and Jno. Ramsay vs. Edward Moffat.83
[seal] Suffolk Ss. George the third by the Grace of God of Great Britain, France and Ireland, King, Defender of the Faith &c.
{ 76 }
To the Sherriff or Marshall of the said County of Suffolk, his Undersherriff or Deputy, or Constable of Boston within the said County or to any or Either of them, Greeting.
In his Majestys Name you are required, to replevie the sloop or Vessell called the Industry of the Burden of about Twenty five Tons, with her Tackle and Apparel belonging to Robert Mercer and John Ramsay of our City of New York in our County and Province of New York, Merchants, now distrained kept or impounded by Edward Moffat, now residing in Boston in our said County of Suffolk Mariner, and deliver the said sloop or Vessell with her Tackle and Apparell unto the said Robert Mercer and John Ramsay: And summons the said Edward Moffat to appear before our Justices of our Inferior Court of Common Pleas, next to be holden at Boston, within and for our County of Suffolk aforesaid, on the first Tuesday of January next, then and there in our said Court to answer to the said Robert Mercer and John Ramsay, in a Plea of Replevin: For that the said Sloop or Vessell, on the first day of January Anno Domini 1771 was at New York, a Place so called vizt. in Boston aforesaid upon a Voyage from New Providence one of our Bahama Islands, and back again, and was greatly out of Repair, and in Want of many Necessaries, as well to repair and refit the said Vessell as to furnish her with stores and other Things necessary to enable her to prosecute pursue, and finish the said Voyage, and one John Petty Mariner was then and there legal Master of said Sloop or Vessell and had the Care and command of her, for and during the said Voyage, and was thereunto duely authorized and { 77 } appointed, and was necessitated to take upon the Adventure of said Sloop or Vessell the sum of two hundred and Eighty four Pounds Twelve shillings and five Pence current Money of our said Province of New York, for making Repairs, and discharging the Repairs made upon said Vessell,84 and furnishing her with Necessaries to set forth on, and pursue her said Voyage, and without which She could not have proceeded on said Voyage: which said sum the said Robert Mercer and John Ramsay, supplied and paid to the said John Petty, for the Purpose aforesaid, at his Request, at the Rate of Eight Pounds Per Cent for said sum, for and during the said Voyage: And the said John Petty, then and there, vizt. on the said first day of January Anno Domini 1771 at said Place called New York viz. in Boston aforesaid, by a certain Bill, or Instrument in Writing of Bottomree, and Hypothecation85 of that Date under his Hand and Seal, duely executed and in Court to be produced, in Consideration of the said Sum, supplied and paid him as aforesaid, did covenant grant, promise and agree to and with the said Robert Mercer and John Ramsay that the said Sloop or Vessell should depart from the Port of the said City of New York on her said Voyage to Providence on or before the tenth day of January aforesaid and as Wind and Weather would permit, should proceed on her said Voyage without Delay: And the said John Petty further, by the same Instrument, or Bill of Bottomree and Hypothecation, for the Consideration aforesaid, did then and there, vizt. on the said first day of January aforesaid at said Place called New York vizt. in Boston aforesaid, grant, bind, hypothecate and pledge the said sloop or Vessell, with the Freight, Tackle and Apparel of the same, to the said Robert Mercer and John Ramsay their Executors, Administrators and Assigns to pay them the full sum of £307 currant Money of our said Province of New York in 10 days next after the said Sloop or Vessell Arrived at Providence aforesaid; and the said John Petty did then and there by the same Instrument or Bill, further covenant with the said Robert Mercer and John Ramsay, that the said Sloop or Vessell, with her freight, Tackle, and Apparell, should at all Times after the said Voyage be lyable and chargeable to and with the Payment of the said sum of £307 currant Money aforesaid, to them the said Robert Mercer { 78 } and John Ramsay; and by the same Instrument or Bill it was then and there further provided, declared and agreed by and between the said Parties to the same, that in Case the said Sloop or Vessell should be lost, miscarry, or be cast away before her Arrival at Providence aforesaid, that then the Payment of the said sum of £307 current Money aforesaid should not be demanded or be recovered by the said Robert Mercer and John Ramsay; and that the loss thereby should be wholly born and sustained by them; and that every Act, matter and Thing in said Instrument or Bill contained, on the Part and Behalf of the said John Petty, should be void: And the said Robert Mercer and John Ramsay aver, that the said Sloop or Vessell did depart from the said Port of the City of New York as aforesaid, and within the Time limited for her departure as aforesaid: and did proceed on her said Voyage, and arrived safely at Providence aforesaid on the 10th, day of Feby. Anno Domini 1771, and was not lost nor did she miscarry, nor was she cast away: And that the said sum of £307 (which is equal in Value to £230 5s. Lawfull Money of our Province of the Massachusetts Bay) hath never been paid to them the said Robert Mercer and John Ramsay or any Part thereof; whereby the said Sloop or Vessell with her Tackle and Apparel hath become forfeited, and belongs to them, and that they ought to be in Possession of the same. And that the said Edward Moffat, on the 16 day of October last at Boston aforesaid took the said Sloop or Vessell with her Tackle and Apparell belonging to the said Robert Mercer and John Ramsay the present Plantiffs: and the said sloop or Vessell, with her said Tackle and Apparell carried away and kept at a Place called the Long Wharf in Boston aforesaid, and there unjustly detained against Pledges and Sureties till this day; which is to the Damage of the said Robert Mercer and John Ramsay as they say the sum of £300 lawfull Money aforesaid, as shall then and there appear, with other due Damages: Provided the said Robert Mercer and John Ramsay give Bond to the Value of £300 lawfull Money aforesaid, with sufficient surety or sureties to prosecute their said Replevin, at the said next inferiour Court of common Pleas, and so from Court to Court untill the Cause be ended, and to pay such Costs and Damages as the said Edward Moffat shall recover against them. Hereof fail not and make due return of this Writ with your Doings therein unto the said Court. Witness Eliakim Hutchinson Esqr. &c.
{ 79 }
Debt on judgment.
[Palmer v. Noyes]86
Attach &c. to answer unto Joseph Palmer of &c. in our said County of Suffolk Merchant in a Plea of Debt for that the said Joseph by the Consideration of our Justices of our Inferior Court of Common Pleas { 80 } holden at Boston within and for our County of Suffolk aforesaid on the first Tuesday of October Anno Domini 1771 recovered Judgment by the Names and Additions of Joseph Palmer &c. both in our said County, against the said Joseph Noyes for the sum of 36 pounds 14/ and 4 pence of Law[ful] M[one]y Damage and two pounds 17/ and 6d. Costs of Suit, as by the record thereof in our said Court remaining appears which Judgment remains in its full force and Unsatisfied whereby an Action hath arisen to the Plaintiff to recover those sums against the said Joseph Noyes yet he hath not either of them, tho often requested but detains them.
Ejectment by Lease, Entry and Ouster.
Laughton vs. Pitts et als.87
Summon James Pitts Esq. Charles Dabney and James Sumner &c. to answer to William Laughton, of Boston &c. Tayler, in a Plea why they the said James Pitts, Charles Dabney and James Sumner, with Force and Arms a Part of a Messuage, Part of a shop and other Buildings, with two certain strips or Parcells of Land, under and adjoining thereto, situate in said Boston and bounded as follows vizt. &c. [one line blank in MS]88 with the Appurtenances, which William Warden of said Boston Peruke maker and Sarah his Wife, demised to the said William Laughton for a Term which is not yet past, entered and { 81 } him from his farm89 aforesaid ejected, and committed other outrages upon him to the great Damage of the said William Laughton, and against our Peace,
And whereupon the same William Laughton complains and saith that the said William Warden and Sarah his Wife on the Sixteenth day of this present June, in the 13 Year of our Reign at Boston aforesaid in the County aforesaid demised to the same William Laughton the Tenements aforesaid with the appurtenances to have and to hold to the same aforesaid William Laughton and his assigns, the same Tenements aforesaid, with the appurtenances, from the said sixteenth day of June aforesaid for and during the full Term of three Years, from thence next ensuing to be compleat and ended, by Virtue of which demise, the same William Laughton into the Tenements aforesaid with the Appurtenances entered and was thereof possessed; and he the said William Laughton being so thereof possessed, the said James Pitts, Charles Dabney and James Sumner, afterwards, to wit, the same 16 day of June aforesaid with Force and arms &c. into the Tenements aforesaid with the Appurtenances which the said William Warden and Sarah his wife, to the said William Laughton demised in form aforesaid for the Term aforesaid which is not yet passed, entered, and him the said William Laughton from his farm aforesaid ejected, and other outrages they the said James Pitts, Charles Dabney, and James Sumner, then and there did against our peace and to the Damage &c.
Case for diverting Water from a Trench, Mill and Land.
Boies vs. Gillespie.90
Attach A. Gillespie &c. to answer to J. Boies &c. in a Plea of Trespass on the Case, for that whereas the said J. Boies was on &c. to &c. seized in his Demesne as of fee of a certain Water Mill comonly called { 82 } the Slitting-Mill91 and of a parcel of Land cont[ainin]g by Estimation 13 Acres or thereabouts near adjoining to said Mill with the Appurtenances situate on or near a Trench in a place between the upper and the lower dam so called in Milton aforesaid; and the said J. Boies and all those whose Estate he hath, in the Mill and parcel of Land aforesaid have and ought to have, and from time immemorial have been accustomed and ought to have the Benefit of a certain Water or Water-Course92 commonly called Neponset River, running from a Spring in { 83 } said Milton commonly called Charles River from thence to the said place there in said Milton commonly call'd the upper Dam and increases a certain Water-Course River, or Stream of Water, which runs from and by the said upper Dam thro' a certain place there call'd the Trench to the said Mill of the Plaintiff there situate between the said upper and lower Dam as aforesaid; And the said A. Gillespie well knowing the premises but maliciously contriving, and fraudulently intending him the said J. Boies of the profits and Commodity of his said Mill and parcell of Land altogether to deprive, on the Day of the purchase of this Writ and on divers other days and times between the said first day of J[anuar]y and the day of the purchase of this Writ in Dorchester aforesaid the Bank of Inclosure of the Water Course aforesaid which runs from the spring aforesaid and increases the Watercourse River or Stream of Water aforesaid which runs as aforesaid from and by the said upper Dam thro' the Trench aforesaid to the Mill of the Plaintiff so much broke, cut, dug, carried away and threw down or caused to be cut, broke, dug, carried away and thrown down, and the Water aforesaid so much diverted or caused to be diverted that by means of the breaking, cutting, digging, carrying away, throwing down and diversion aforesaid, the said Mill of the Plaintiff call'd the Slitting Mill for want of sufficient Water running in the ancient Course thereof, could not slit or work so well or commodiously; and the said parcel of Land was greatly damnified, whereby the said J. Boies lost great part of the profits of the said Mill and parcel of Land aforesaid for a long time viz. on the day of the purchase of the Writ and divers other days and times between the said first day of January and the said Day of the purchase of this Writ, and more especially the Plaintiff lost the Benefit, profit and Advantage of cutting and slitting two Tons of Iron at said Milton on the same day which lay there ready at said Mill to be cut and slit, and the plaintiff avers that every thing was then and there ready for the purpose of slitting and cutting the said Two Tons of Iron excepting water sufficient for commodiously working the said slitting Mill, which water was then and there diverted and turned away out of it's said antient Course by the said A. Gillespie in Manner as aforesaid.
And also for that wheras the said J. Boies on &c. and for three years last past was and now is seized in fee and possessed of, and in an antient Messuage, and a certain other Tract of Land cont[ainin]g by Estimation 13 Acres or thereabouts with the Appurtenances in Milton in the County aforesaid which same Tract lieth contiguous and adjoining on the North Side, to a certain antient Water Course called { 84 } Neponset River, which runs and time out of mind hath run and used and of right ought to run from a certain Spring head called Charles River in Milton aforesaid to, in, and by the said last mentioned Tract of Land of the plaintiff and his Messuage aforesaid thro' a certain other Trench there by the same Tract of Land quite up to, by, and beyond the lower Dam there so called adjoining a certain other Tract there being and belonging to the plaintiff, notwithstanding which, the said A. Gillespie (not ignorant of the premises, but contriving and maliciously intending to frustrate and hinder the said J. Boies from the use and Benefit of the same Water Course) on the day of the purchase of this Writ and on divers other days and times between the said 1st Jany. and the said Day of the purchase of this Writ in Dorchester aforesaid dug, broke up, and cut away a certain bank or Inclosure of the said Water-Course and thereby diverted the same Water Course from the Water Course of the said J. Boies; by which the said J. Boies was greatly injured and deprived of and lost a very great part of the use profit Benefit and Advantage of the said Water Course for a long time viz. on the day of the purchase of this Writ and also from the said 1 Jany. to the said day of the purchase of this Writ: Ad damnum £300.
Ditson vs. Small.93
Attach &c. John Small &c. to answer John Ditson &c. in a Plea of Trespass for that the said John Small, at Dunstable &c. on the first { 85 } day of January Anno Domini 1771 with Force and Arms, broke and entered the Plantiffs Close in Dunstable aforesaid, containing &c. bounded &c. and being so entered with Force as aforesaid cut down and carried away one hundred Trees the Property of the said John Ditson to the Value of 2s. each, erected a Fence on the said Land of the Plantiffs, dug up the Soil and the Grass of him the said John Ditson in the Close aforesaid then growing with certain Cattle and Teams, oxen and Carts did eat up, tread down and destroy, the Trespass aforesaid as to the cutting down and carrying away the Trees as aforesaid and as to the Eating up, treading down and destroying the Grass aforesaid with the Cattle aforesaid from the aforesaid first day of January Anno Domini 1771 to the Day of the Purchase of this Writ, at Sundry days and Times continuing, and many other Enormities the said John Small did to the said John Ditson against our Peace and to the Damage &c.
Stone et al. v. Littlefield.94
Attach &c. to answer in a plea of the case for that upon the 4 Octr. &c. at &c. the said J. borrowed and received of the Plaintiffs 11 Gall. { 86 } of Barbadoes Spirit, worth [£] 2–13–4 and in consideration thereof the said J. then and there promised the plaintiffs to repay them 11 Gall, of the same sort of Spirit when he should be requested so to do; Now the said &c. say that afterwards viz. on &c. at &c. they requested the said J. to return and redeliver to them 11 Gall, of the said Spirit, but the said J. then refused and still refuses to deliver to the Plaintiffs 11 Gall, of said Spirit and so has broken his promise aforesaid.
[signed] Kent
1. In JA's hand. Pleadings Book, p. 2. Printed with some variations in Perham, American Precedents 135. The records and files have not been found. Perham appended the following note: “As the Dft. was to do the first act, viz. deliver the goods, it was not necessary for the Plf. to aver an offer or tender of the freight; but query, if not a time when the goods were to be delivered, and that that time was past? In order to apply the evidence, the Plf., if he cannot prove a precise time agreed on, may allege the reasonable time the law implies.” The editor of the second edition of American Precedents revised this note to state that the plaintiff should have averred a tender, “for defendant has a lien upon the goods for the freight, and payment thereof is by the contract a condition precedent. See 3 Burr. 1499. 4 Burr. 2218. Doug. 104.” He also suggested that a special request for delivery or the passage of a reasonable time might have been alleged as alternatives to a specific time of delivery. American Precedents 185 (New York, 2d edn., 1810). This declaration in assumpsit is one of four declarations against masters or owners of vessels on bills of lading in the Pleadings Book. See Waldo v. Gridley, Form II; Langdon v. Barber, Form III; McLean v. McEwen, Form XVII. The declaration in the last-mentioned case is a form more in accord with later practice than that printed here. See note 7660 below.
2. In JA's hand. Pleadings Book, p. 3–5. Printed with some variations in Perham, American Precedents 213–214. The action was filed in the Suffolk Inferior Court, where, in Oct. 1751, Jeremiah Gridley obtained a verdict in favor of Isaac Gridley for costs. See text at note 237 below. On appeal to the Superior Court in Feb. 1752 the defendant again prevailed. The Superior Court Minute Book indicates that Edmund Trowbridge filed the appeal. SCJ Rec. 1752, fol. 31; Min. Bk. 61, SCJ Suffolk, Feb. 1752, N–55. Perham put the form in a section containing actions on the case in tort, rather than under the heading “Assumpsit,” where Holden v. Conner, Form I, appeared. In later practice, at least, the remedies of assumpsit and case for negligence were concurrent and the differences in form between the pleadings were slight. Among the practical differences were that in assumpsit all parties to the contract had to be joined, the agreement between the parties had to be stated in express terms, and the common counts (note 3115 below) could be joined. In tort, recovery could be had against any one of the parties, only a duty need be shown, and a count in trover could be joined. See 1 Chitty, Pleading 92, 134–135, 138; 2 id. at 155–161, 319–321; Joseph K. Angell, A Treatise on the Law of Carriers 366–392 (Boston, 3d edn., 1857). JA probably regarded the form of action here as assumpsit. An express contract, consideration, promise, and breach are set out. Compare Angell, Carriers 380–392. Further, the final clause (text preceding note 226 below) in effect makes the declaration one in indebitatus assumpsit, since it alleges a sum certain owing to the plaintiff and the new defendant's presumably fictional promise to pay it. This clause does not appear in American Precedents. Its presence in the actual form may have been owing to a doubt as to the liability of the owner on the master's contract, or for his defaults. See authorities in notes 259, 2610, below. The form was probably inserted here because of its use in Langdon v. Barber, Form III. See note 248 below.
3. Here and elsewhere in the Pleadings Book, JA has omitted the description of the parties, known as the “addition,” which in this instance was “of Boston in the County of Suffolk, merchant.” SCJ Rec. 1752, fol. 31. By the English Statute of Additions, 1 Hen. 5, c. 5 (1413), in original writs and certain other processes, “in the names of defendants ... additions shall be made of their estate or degree, or mystery [i.e occupation], and of the towns, or hamlets, or places and counties, of which they were, or be, or in which they be or were conversant,” or else the writ could be abated. See 1 Chitty, Pleading 246–247. In Massachusetts the act prescribing forms of writs provided that the plaintiff's addition should appear also. Act of 3 June 1701, c. 2, §1, 1 A&R 460. Compare Perham, American Precedents 90 note. The consequences of omitting the description of the plaintiff are not known, but a mistake or omission in the addition of the defendant was grounds for abatement of the writ. See Ballard v. McLean, Quincy, Reports 106 (SCJ Suffolk, Aug. 1764); Bromfield v. Lovejoy, Quincy, Reports 237 (SCJ Suffolk, March 1767).
4. Sums paid the master by the shipper over and above the freight for his care of the goods, and to cover expenses for lights, pilotage, and wharfage. See René de Kerchove, International Maritime Dictionary (Princeton, 1948).
5. By this time the custom of merchants was a fictional allegation which need not be proved. See 5 Holdsworth, History of English Law 144–145.
6. Here and in most of the forms in the Pleadings Book JA has abbreviated the formula known as the ad damnum, “To the Damage of the said John as he saith the sum of twenty five pounds.” SCJ Rec. 1752, fol. 31. Where damages were sought such a statement had to be included, and in actions other than debt the damages claimed were the limit of the plaintiff's recovery. In debt nominal damages could be claimed, because it was the sum sued for itself, rather than damages, which was the object of the action, 1 Chitty, Pleading 397–400. The usual declaration in English practice concluded with the further phrase, “and therefore he brings his suit, etc.” (the “etc.” standing for “and good proof”). “Suit” (Latin, sectam) here meant followers or witnesses rather than action. Sutton, Personal Actions 81–82. This conclusion was not part of the form used in Massachusetts, where by statute the last phrase was “which shall then and there be made to appear with other due damages.” See Act of 3 June 1701, c. 2, §1, 1 A&R 460.
7. The proceedings in the Inferior Court. See note 182 above.
8. In JA's hand. Pleadings Book, p. 4–5. This writ, dated 29 March 1771, was probably drawn by JA, since he was of counsel for Langdon, both in the April 1771 Suffolk Inferior Court, where Barber prevailed on a demurrer to the plea, and in the Aug. 1771 Superior Court, where the jury found a verdict for Barber. Josiah Quincy Jr. was of counsel for the latter. Min. Bk., Inf. Ct. Suffolk, April 1771, No. 205; SCJ Rec. 1771, fol. 214; Min. Bk. 95, SCJ Suffolk, Aug. 1771, N–3. SF 101888. The action, like Waldo v. Gridley, Form II, was against the owner of a vessel for goods shipped on a bill of lading. This declaration does not recite the giving of a bill of lading, but sets out the contract in the language of the bill. Compare McLean v. McEwen, Form XVII; see 2 Chitty, Pleading 159–161. The file copy of the writ contains a second count, virtually identical to that in Waldo, which does recite the bill. SF 101888. Like the declaration in Waldo, the count here sounds in indebitatus assumpsit by virtue of the last clause.
9. In the MS this and the following two citations appear in the margin. See 3 Bacon, Abridgment 591: “And as the master himself is answerable . . . so likewise hath it been held, that the owners are liable to the freighters, in respect of the freight, for the embezilments, &c. of the master and mariners.” The next sentence, at p. 592, adds the qualification that “this proving a great discouragement to trade,” the statute, 7 Geo. 2, c. 15 (1734), provided that the liability of the owners for the embezzlements and other defaults of master and crew done without the owners' privity should be limited to the value of the vessel and her pending freight. This Act was the ancestor of the present-day American statute limiting vessel owners' liability. Grant Gilmore and Charles L. Black Jr., The Law of Admiralty 664 note (Brooklyn, 1957).
10. Boson v. Sandford, 3 Mod. 321, 323, 87 Eng. Rep. 212, 213 (K.B. 1690), holding that where goods were damaged through the neglect of the master of a vessel owned jointly by eight proprietors, all eight must be joined, and adding a dictum that the master need not, he being “no more than a Servant to the owners, [who] has no property either general or special, but the power he has is given by the civil law.” The report then set out “many cases where the act of the servant shall charge the master,” concluding, “Therefore though the neglect in this case was in the servant, the action may be brought against all the owners, for it is grounded quasi ex contractu, though there was no actual agreement between the plaintiff and them.”
11. Daniel Reading, The English Clerk's Instructor in the Practice of the Court of King's Bench, and Common Pleas, 1:341 (London, 1733), a declaration in assumpsit against the master of a vessel for not delivering goods loaded aboard his ship. JA's citation “371” is evidently an error, since there was only one edition of Reading's work, 1 Sweet and Maxwell, Legal Bibliography 277.
12. A fictitious but nontraversable allegation intended to justify venue in Boston. See 1 Chitty, Pleading. 273; Fifoot, History and Sources 162; 5 Holdsworth, History of English Law 140–142. Compare No. 4, text at note 2.
13. In JA's hand. Pleadings Book, p. 6. Printed with slight variations in Perham, American Precedents 301–302. JA was Whiting's counsel. For his minutes and the proceedings in the case, see No. 17. The declaration, dated 5 Dec. 1770, was probably drawn by Josiah Quincy Jr., who represented Abiel Hill. Min. Bk., Inf. Ct. Suffolk, Jan. 1771, No. 160. Although labeled “Ejectment,” the action is actually one in the nature of a writ of entry, one of the ancient real actions. See note 3014 below; No. 17, text at notes 3–7. Asahel Stearns, citing its appearance in American Precedents 362 (Brookfield, Mass., 3d edn., 1821), called this declaration a unique form developed in Massachusetts in lieu of the English action of ejectment, which supposedly was not used in the Province. Asahel Stearns, A Summary of the Law and Practice of Real Actions 178–179, 396–398 note (Boston, 1824). Ejectment was used on occasion, however. See No. 17, note 5; Laughton v. Pitts, Form XXVI.
14. The products or profits of the land. This was a formal but necessary allegation in both a writ of right and a writ of entry, intended to show the substantial nature of the seisin under which the land was claimed. See Stearns, Real Actions 155, 364–366. The allegation “in a time of peace” was also a purely formal part of both writs, denoting activity under law at a time when the courts were open. Id. at 155–156. The form here differs from that usually found in a writ of entry in that it does not contain an allegation in the first paragraph detailing the particulars of the wrongful entry. In adopting JA's form, Stearns grafted such allegations on to it. Id. at 442–443. Although the form is not exactly a writ of entry, it is even less a writ of right. It lacks much of the latter's distinctive language, such as an allegation at the end of the land description that the lands were claimed “By writ of our lord the king of right”; a statement that the seisin “in his demesne as of fee” was also “as of right”; and the concluding clause, “and that such is his right he offers, &c.” In place of the latter, this form concludes with a clause such as was ordinarily used in the writ of entry. Id. at 362–364. Compare Stephen, Pleading 37.
15. In JA's hand. Pleadings Book, p. 7–9. This writ in the case of Samuel Haynes v. Francis Shaw is dated 1 April 1768, returnable to the April 1768 Suffolk Inferior Court. It was probably drafted by Robert Auchmuty, who entered the action and was Haynes' counsel at the Jan. 1769 Inferior Court, where Shaw won on a demurrer to the plea. Since only the first three counts printed here appear in the copy of the declaration in the file of the case, and there is no indication that the pleading was amended, JA may have added the others himself. Haynes' appeal was entered at the March 1769 Superior Court and continued until Feb. 1771. Then, with JA now of counsel for Haynes, the matter was submitted to referees who brought in a report awarding Shaw his costs. Min. Bk., Inf. Ct. Suffolk, April 1768, No. 198; SCJ Rec. 1771, fol. 3; Min. Bk. 89, SCJ Suffolk, March 1769, N–27; id., Feb. 1771, C–14; SF 101813.
The declaration printed here is one in general assumpsit on the so-called “common counts,” statements of the same underlying indebtedness made in alternative forms in order to prevent a fatal variance between pleading and proof. The counts set out and labeled in the margin by JA include four of the “indebitatus” counts, and two of the “quantum” or “value” counts, one of which JA left incomplete. The indebitatus counts alleged very generally an indebtedness in a sum certain and a fictitious promise by the defendant to pay the debt. They were: the count on an account annexed, an “immemorial practice” in Massachusetts (see Quincy, Reports 252 note; 1 Dane, Abridgment 174) which apparently replaced the counts for goods furnished or work performed used in England; counts for money paid by the plaintiff for the defendant and for money had and received by the defendant to the plaintiff's use; and the count in “insimul computassent,” or on an account stated between the parties (sometimes treated as a separate variety of general assumpsit). The quantum counts were “quantum valebant” and “quantum meruit” in which the plaintiff alleged the specific goods furnished or work done and the defendant's promise to pay what the goods or services were reasonably worth. The point of this variation was that there was no need to plead and prove the precise sum involved, but as JA has set it out, the quantum valebant count concludes with a second promise to pay a sum certain, not found in the usual English forms, which seems to defeat the ostensible purpose of the pleading. The reason for this variant and its effect have not been determined. If the clause was standard form in Massachusetts, it apparently was not taken literally. Three other JA cases show that quantum meruit rather than indebitatus assumpsit was held to be the proper form where an express price was not to be pleaded and proved. Tyler v. Richards, Quincy, Reports 195 (SCJ Suffolk, Aug. 1765); Pynchon v. Brewster, id. at 224 (SCJ Suffolk, Aug. 1766); Glover v. Le Testue, id. at 225 note, Adams Papers, Microfilms, Reel No. 185 (SCJ Suffolk, Aug. 1770). As to the common counts generally, see Fifoot, History and Sources 358–371, 378–379, 391–394; Shipman, Common-law Pleading 152–167, 259–263; Perham, American Precedents 95–108. See also No. 12, text at notes 22–28, 32–36, 122–126.
16. The MS breaks off here.
17. In JA's hand. Pleadings Book, p. 10–11. Printed, with slight variations, in Perham, American Precedents 329–330. The writ, dated 7 Jan. 1771, and filed in April 1771 at the Suffolk Inferior Court, was presumably prepared by Samuel Fitch, who entered the action. Samuel Quincy appeared for Richards at the Jan. 1772 Inferior Court, where Doble, represented by JA, obtained a jury verdict. On appeal to the Superior Court, with Fitch now alone and JA still of counsel for Doble, Richards discontinued in Aug. 1773. Min. Bk., Inf. Ct. Suffolk, April 1771, No. 309; Jan. 1772, No. 40; SCJ Rec. 1773, fol. 104; Min. Bk. 98, SCJ Suffolk, Aug. 1773, C–33; SF 102288. See JA's minutes of the Inferior Court trial, Adams Papers, Microfilms, Reel No. 185. See also Boston Gazette, 24 Dec. 1770, p. 3, col. 2.
This action of trespass for assault arose out of the tarring and feathering on 18 May 1770 of Owen Richards, a minor customs official, who had been involved in the case of John Hancock's Lydia in 1768. See No. 46, note 2. Richards also sued at least two other assailants, whom JA represented. Benjamin Jones won a verdict against him at the July 1771 Inferior Court, the appeal being dropped in Aug. 1777. Richards v. Jones, Min. Bk. 103, SCJ Suffolk, Aug. 1777, C–19; SF 102532; see JA's minutes of the Inferior Court trial, Adams Papers, Microfilms, Reel No. 185. Against Joseph Heakley, Richards had better luck, winning a verdict at the Aug. 1772 Superior Court after losing before a jury at the Inferior Court in April 1772. Richards v. Heakley, Min. Bk. 95, SCJ Suffolk, Aug. 1772, N–27; SF 102127. JA's Office Book, April 1771 Suffolk Inferior Court, MQA, shows a fee of 24s. in Doble's case and fees of 12s. and 48s. in the case of Richards v. “Joseph Aikley” [Heakley]. With the latter entry JA noted: “at Elizabeth Winship's Instance.” Richards had incurred the wrath of the mob (still inflamed by the aftermath of the Boston Massacre, Nos. 63, 64), when, according to Quincy's argument for him in Jones, he had seized “A Vessell from Connecticutt, at noon day in the open Breach of the Acts of Trade. He was informed of it, and went to see her, and there by his own View and his oath he was obliged to seize her. In the afternoon, he was going down to the Vessell and was surrounded by a Multitude and tarred, feathered, and carted, and lost his Cloaths, Money, and Papers to the Amount of near £20 st. And in order to satiate their abandoned Brutality, they set fire to the Feathers as they stuck in the Tar, upon his naked back.” JA's minutes, Richards v. Jones, cited above. See also Boston Gazette, 21 May 1770, p. 3, col. 1; Rowe, Letters and Diary 202; Esther Forbes, Paul Revere and the World He Lived In 208–213 (Boston, 1942); Account of the Mobbing by Richards and Others, 4 New England Papers 1–2, MH. For criminal proceedings arising from the riot, see Rex v. George Hamblin, Min. Bk. 91, SCJ Suffolk, Feb. 1771; SF 89791. (JA billed John Hancock £2 8s. 6d. for services in the latter case. See JA's account with Hancock, receipted 21 Dec. 1771, an John Hancock's Account with John Adams facing page 63illustration in this volume.)
18. A Portuguese gold coin, worth about 36s. OED.
19. In JA's hand. Pleadings Book, p. 12–13. Probably drafted by Robert Auchmuty, who entered the action at the Jan. 1770 Suffolk Inferior Court. No files for this case have been found. The tarring and feathering which it recounts took place on 28 Oct. 1769 at the hands of a mob which formed in the aftermath of John Mein's escape from Boston. See Rowe, Letters and Diary 194; No. 12, note 10. The case was decided in the defendants' favor on demurrer at the Jan. 1770 court. An appeal under the names of “Geo. Galer Apt. vs. Eleazr. Trivett” was entered by Robert Auchmuty at the Suffolk Superior Court in March 1770. The action was dropped at the Aug. 1771 term when neither party appeared. JA's Office Book, MQA, shows that he received a fee of 19s. 4d. from Bradley, one of the defendants, for services at the Inferior Court. See Min. Bk., Inf. Ct. Suffolk, Jan. 1770, No. 125; SCJ Rec. 1771, fol. 209; Min. Bk. 91, SCJ Suffolk, March 1770, N–33; Min. Bk. 95, SCJ Suffolk, Aug. 1771, C–38.
20. In JA's hand. Pleadings Book, p. 14. The writ, dated 15 March 1768, may have been drafted by James Otis, who represented Ruggles in the Suffolk Inferior Court at the April 1768 term, where Doane, with Samuel Swift as counsel, prevailed on demurrer. On appeal to the Superior Court Blowers and JA appeared for Ruggles, and Auchmuty for Doane. At the Aug. 1771 term Ruggles discontinued, paying costs of £14 8s. 4d. A deposition that Doane had paid his taxes, given by a Wellfleet constable, may have been the cause. See Min. Bk., Inf. Ct. Suffolk, April 1768, No. 228; SCJ Rec. 1771, fol. 207; Min. Bk. 86, SCJ Suffolk, Aug. 1768, N–6; Min. Bk. 95, SCJ Suffolk, Aug. 1771, C–7, SF 101890.
21. Act of 28 Jan. 1764, c. 18, 4 A&R 669, extended to 1 July 1770 by Act of 21 Feb. 1766, c. 33, 4 A&R 859. The first section of the 1764 Act gave the collectors and constables of Boston a remedy against the agents, factors and trustees of an “absconding person” like that which “other creditors have for recovery of their debts.” Under §2, “where any person duly rated in the said town hath removed, or shall remove, out of it, into some other town in this province, ... before payment of such rates, and where, the time for payment to the respective treasurers [i.e. province, county, and town] being elapsed, the collectors or constables in the said town shall have paid the whole sums given them to collect in each year; in all such cases it shall and may be lawful for the collectors or constables of the said town ... to sue for such rates and taxes; and they shall have all the like remedies for recovery thereof, as other creditors have for recovering their proper debts.” This act was presumably passed in response to the dictum of the Superior Court in Ruddock v. Gordon, Quincy, Reports 58, 59 (SCJ Suffolk, Feb. 1763), that no action of assumpsit lay for the recovery of taxes by a collector when the only statutory remedy was distress. See Act of 3 Oct. 1730, c. 1, §§12–17, 2 A&R 552–554. An action of debt was the usual remedy in a right of action given by statute. See Shipman, Common-law Pleading 137–138. Although it is not made explicit in the pleading, it seems probable that Doane was being sued under the second section of this act as one who had “removed.” Later one of JA's clients, he was an extremely wealthy man, owning property in Boston as well as in Wellfleet and elsewhere. See No. 58, note 12 and Doc. I. The tax acts in question were the Act of 21 June 1765, c. 18, 4 A&R 818, and the Act of 27 June 1766, c. 6, 4 A&R 883.
22. The plea, nil debet (literally, “he owes nothing”), was the general issue in debt, putting in issue, “nearly everything that negatived the existence of the debt at the time of the commencement of the action.” Sutton, Personal Actions 164. See Shipman, Common-law Pleading 327–328. The phrase in the plea abbreviated at the “&c.” is, in full, the commonly omitted formula called the “defense”: “comes and defends the wrong and injury when and where it so behoves him, and the damages, and whatsoever else he ought to defend.” “Defends” in this context means “denies.” See note 9478 below. The concluding phrase, “puts himself on the Country,” is the formal conclusion of a traverse, a pleading tendering an issue triable by jury which the other party had to accept if properly pleaded. See Sutton, Personal Actions 81–83. The formal acceptance of the issue, known as the similiter, is omitted here. See note 6852 below.
23. In JA's hand. Pleadings Book, p. 15. The writ was dated 5 March 1771, returnable to the April 1771 Suffolk Inferior Court. It was probably drawn by JA, who received a fee of 18s. from Joshua Green at the April 1771 court. Office Book, MQA. At the July 1771 Inferior Court Joshua won a jury verdict, with Samuel Quincy appearing for him. On appeal in Feb. 1772, with JA and Quincy both as his counsel, the jury affirmed the prior verdict. See Min. Bk., Inf. Ct. Suffolk, April 1771, No. 200; SCJ Rec. 1772, fol. 17; Min. Bk. 95, SCJ Suffolk, Aug. 1771, N–5; Feb. 1772, C–56; SF 102081. According to JA's undated minutes, a reference was “declined.” Adams Papers, Microfilms, Reel No. 185. The case arose out of the winding up of the affairs of Joseph Green, deceased, who had run a business which his son, the defendant, had apparently managed after Joseph's death. The plaintiff, as administrator of Joseph's widow, sought to question the son's management.
The action of account, to require one who holds money or goods of another to render the balance due, was rarely used in England at this time, its functions having been largely superseded by the less cumbersome device of proceedings in equity. Fifoot, History and Sources 275–276. See JA's minutes, cited above. Since there was no court of equity in Massachusetts, resort either to account or to the simpler indebitatus assumpsit for money had and received (note 20 above) was necessary. Although in later English practice assumpsit seems to have been available in all cases where account would lie, in the 18th century there was authority to the effect that it was not proper in the case of an actual account current between the parties, because of the complexity of the computation involved. See cases cited in James Barr Ames, Lectures in Legal History 117–119 (Cambridge, Mass., 1913). See also Lincoln v. Parr, 2 Keble 781, 84 Eng. Rep. 494 (K.B. 1671); Gilbert, Evidence 192; 2 Duncombe, Tryals per Pais 494 (London, 8th edn., 1766); 1 Dane, Abridgment 165. This authority may explain the use of the action of account here. At common law the question whether the defendant was liable to account at all was for the jury, but determination of the sums actually due was submitted by the court to auditors. Fifoot, History and Sources 273–274. In this suit, at the Inferior Court the defendant pleaded in bar that he was “never bailiff” as to part of the declaration and that he had “fully accounted” as to the rest. On amendment in the Superior Court he pleaded that he was “never receiver” as to the first count of the declaration and “never bailiff” as to the second. SF 102081. Compare the forms in John Mallory, Modern Entries in English, 1:42–43, 51 (London, 1734); see also 1 Comyns, Digest 99–100; 1 Chitty, Pleading 483–484. Since these pleas presented issues for the jury which in both suits were resolved in the defendant's favor, the question whether auditors should be appointed was never reached. Auditors were later expressly provided by statute in Massachusetts. Act of 17 Feb. 1786, [1784–1785] Acts and Resolves 521–522; Act of 20 Feb. 1818, [1818] Mass. 550–551 (Jan. Sess. 1818); see 1 Dane, Abridgment 166.
24. In 1 Mallory, Modern Entries 48–49, appear two forms on which the two counts of this declaration seem to have been based.
25. The words “Bailiff and” are lined out in the file copy of the writ. SF 102081.
26. In JA's hand. Pleadings Book, p. 16. The writ, dated 21 March 1771, returnable at the April Suffolk Inferior Court, was apparently drafted by JA, who entered the action. JA also was Needham's counsel at the July 1771 court, where judgment was given for Kingsbury on a demurrer to the plea, Needham having agreed that the trial of any appeal would be final. In the Superior Court, the case was continued term by term until Feb. 1779, when the suit was dropped. See Min. Bk., Inf. Ct. Suffolk, April 1771, No. 204; July 1771, No. 73; SCJ Rec. 1779, fol. 52; Min. Bk. 95, SCJ Suffolk, Aug. 1771, N–7; Min. Bk. 103, SCJ Suffolk, Feb. 1779, C–1; SF 102598. This suit for malicious prosecution arose out of an action brought by John Needham, Ezekiel's son, against Kingsbury at the July 1768 Suffolk Inferior Court for services performed and for a sawmill saw which Needham claimed that Kingsbury had agreed to buy, or at any rate had used and returned in damaged condition. Needham won a jury verdict for three pounds in the Inferior Court, which was reversed by a Superior Court jury at the Aug. 1768 term, and then on review in March 1769 was restored by a third verdict which included costs in the staggering amount of £79 3s. 7d. JA was Needham's counsel at both Superior Court trials. See Min. Bk. 86, SCJ Suffolk, Aug. 1768, N–26; Min. Bk. 89, SCJ Suffolk, March 1769, N–24; SF 101254, 101352.
At the Nov. adjournment of the Aug. 1769 Superior Court term, on Kingsbury's complaint, Ezekiel Needham was indicted on two separate indictments for perjury in his testimony at the Inferior Court trial and at the Superior Court trial in review. His wife, Dorothy Needham, was also indicted for perjury in the Inferior Court. In each indictment the charge was the same, that the witness had testified “that three or four Teeth were broken out of the Saw” in dispute, “and that the same Saw was bent and twisted and entirely spoiled.” See SF 102598, 101798, 101799, 101773. According to minutes taken by JA, probably at the trial in review, Ezekiel had testified that Kingsbury “brought the saw to my house and said it did not prove so well as he expected. The Saw was damnified, the Teeth were broke and the Saw was bent.” Adams Papers, Microfilms, Reel No. 185. At the March 1770 term two indictments were also brought against John Needham—one for forging the signatures of his witnesses to the accounts of their travel to the Superior Court, and one for subornation of perjury, charging that he had procured Samuel Frost to testify falsely as to the condition of the saw at the trial in review. See SF 101796, 101797. After several continuances, during which Ezekiel was free on bail, he was tried under the indictment covering his Inferior Court testimony at the Feb 1771 Superior Court. (On his other indictment no plea appears and the words “not compleated” are written. SF 101799.) JA's minutes of the trial show that various witnesses testified that the saw was not damaged when Kingsbury returned it, but the saw itself was introduced in evidence and apparently had at least two or three broken teeth. Although some witnesses stated that these were broken before Kingsbury got possession, he testified himself that “This is the Saw that I carryd home to Needhams Mill. Just as it was then. I cant so well tell that the Saw was exactly so at the Time I took it. When I carryd it home, I told him that it was something rusty. There was 2 or 3. Same as it is now.” Adams Papers, Microfilms, Reel No. 185. This testimony was apparently conclusive. The jury found Ezekiel not guilty and he was discharged. At the same term Dorothy and John Needham were likewise acquitted. Min. Bk. 89, SCJ Suffolk, Feb. 1771. This prosecution was the basis of Ezekiel's present suit.
At the Aug. 1773 term, Ezekiel was once again cited for perjury as a result of his testimony for John in a suit against the latter by Jeremiah Hall, in which Hall had finally prevailed on review. JA was again counsel for Needham in the civil suit. Min. Bk. 98, SCJ Suffolk, Feb. 1773, C–49; Aug. 1773, N–16; SF 102275, 102 2520. Needham gave his recognizance for prosecution at the next term, but no further record has been found. See note 2946 below. See also Ezekiel Needham v. Jeremiah Hall, Min. Bk., Inf. Ct. Suffolk, April 1772, No. 243, a default judgment for Needham with JA of counsel.
27. In 2 Gardiner, Instructor Clericalis 53–57 (London, 1724), appears a discussion of malicious prosecution, followed by “A Declaration in Case for malitiously preferring an Indictment of Felony, which the Jury return'd ignoramus.”
28. 1 Mallory, Modern Entries 160, where there appears the form of a declaration in an action on the case for wrongful prosecution for larceny. JA has followed this form almost exactly.
29. “Manner of conducting oneself in the world or in society; behaviour, mode or course of life.” OED.
30. The MS breaks off here. The declaration as found in the Superior Court files continued as follows:
“always been untouched, unsuspected, and free from the suspicion and imputation of any such execrable and horrible crime, by reason of which good Name, fame, Credit, and honest Conversation, he the said Ezekiel had not only gained to himself the love and favour of all his Neighbours, but hath also reap'd and enjoyed great Advantages arising therfrom. Nevertheless the said Seth, being in no wise ignorant of the premises, but contriving and maliciously intending unjustly to grieve the said Ezekl. and not only to injure and detract him the said Ezekiel in his good name, fame, Credit and Reputation, but also to subject and bring him into danger of the pains and Penalties of Perjury, on the twenty first day of November [1769], at Boston aforesaid falsly and maliciously laid a charge of perjury against the said Ezekiel, and afterwards there on the same day, he the said Seth, out of his further malice which he had against the said Ezekiel, falsly and maliciously and without any true or lawful or probable Cause at our Superior Court of Judicature, Court of Assize, and General Goal Delivery, held at Boston within and for the County of Suffolk, on Tuesday, the Twenty first day of November [1769], by Adjournment duly made from the last Tuesday of August [1769], being the time by law appointed for holding the same Court, exhibited a Bill of Indictment against the said Ezekiel to the Jury of the Grand Inquest.” The declaration then went on to recite the substance of the indictment actually returned by the grand jury, which set out the details of John Needham's declaration against Seth Kingsbury at the July 1768 Suffolk Inferior Court and the proceedings there, including Ezekiel Needham's allegedly perjured testimony. Ezekiel's declaration then gave the proceedings on the indictment leading to his acquittal, concluding, “by reason of which premises the said Ezekiel was obliged to expend and lay out divers great sums of money to obtain his Enlargement from his said Imprisonment, and for the said Ezekiel to acquit himself from the said Crime as above charged upon him. To the damage of the said Ezekiel Needham (as he saith) the sum of five hundred pounds, which shall then and there he made to appear with other due Damages.” SF 102598. See forms in Perham, American Precedents 205–209.
31. Caption in JA's hand. Title of the case and remainder of the declaration possibly in the hand of William Tudor, JA's clerk. Pleadings Book, p. 18. The records of this case have not been found. The original of the writ, endorsed Paul Revere, dated 23 Oct. 1772, and returnable to the Jan. 1773 Suffolk Inferior Court, appears in SF 91313. According to JA's Office Book, Jan. 1773 Suffolk Inferior Court, MQA, JA represented Lowrie. At the entry he noted “finished,” and wrote the figures £1 6s. 8d., which presumably was his fee. This is an action per quod servitum amisit (whereby he lost his services), properly brought in case, although if the servant were injured through force, trespass would also be proper. See 1 Chitty, Pleading 137–138. For forms, see 2 id. at 317–319; Perham, American Precedents 209–210. The case and its aftermath are described in Forbes, Paul Revere 396; Revere “had only got David Mosely [his apprentice] back by suing the shipmaster who had seduced him away from his goldsmith shop (and considering that Mosely then turned around, married his master's sister, Betsey, although she was much older than himself, drank too much, and was a spendthrift and a thorn in Revere's side forever after, he may have wished he had let the boy go).” For Revere's difficulties in later years as Mosely's guardian, see SJC Rec. 1798–1799, fol. 38; SF 107814.
32. A note in JA's Office Book, Jan. 1773 Suffolk Inferior Court, MQA, indicates that Lowrie was a mariner from Glasgow.
33. In JA's hand to text at note 3854 below. Remainder probably in hand of Jonathan Williams, JA's clerk. Pleadings Book, p. 25–26, 30. JA presumably drew the writ, dated 18 Dec. 1770, since he appeared for Ruddock in the Jan. 1771 Suffolk Inferior Court, where a jury awarded JA's client £200. JA also represented Ruddock on appeal, but in the Superior Court the case was referred. At the Feb. 1771 term a report was entered reducing his recovery to £49 14s. 4½d. Min. Bk., Inf. Ct. Suffolk, Jan. 1771, No. 235; SCJ Rec. 1771, fol. 20; Min. Bk. 91, SCJ Suffolk, Feb. 1771, N–29; SF 101820. The suit was on a charter party, a contract for the hire of a vessel. As the authorities cited in notes 5034 and 5135 below indicate, debt and covenant were alternative remedies in such a case where the agreement was under seal. The difference was that in covenant recovery would be limited to actual damages, while in debt the penal sum actually stated in the contract to be due in the event of breach could be sued for. See 1 Chitty, Pleading 112–114. The difference was of slight practical effect, since by Act of 10 Dec. 1698, c. 22, §1, 1 A&R 356, the court was permitted to “chancer” a jury verdict in such a penal sum to the “just debt and damages.” Compare No. 13, note 3. Here a similar result was apparently reached by the referees. Admiralty has always claimed jurisdiction of charter parties. Today this claim is conceded because of the maritime subject matter involved, although under the “saving clause,” 28 U.S.C. §1333, there is concurrent jurisdiction at common law. In the 18th century the common-law courts held that their jurisdiction was exclusive over virtually all contracts not actually made at sea to be performed at sea and used the writ of prohibition to limit the Admiralty courts accordingly. As a consequence, cases such as this seem to have been tried far more frequently before the courts of law than in Admiralty, at least in Massachusetts. See Wroth, “The Massachusetts Vice Admiralty Court and the Federal Admiralty Jurisdiction,” 6 Amer.Am. Jour. Legal Hist. 351, 360–364 (1962); Gilmore and Black, The Law of Admiralty 21, 170. Compare note 9983 below.
34. 2 Mallory, Modern Entries 1–6, contains the form of “A Declaration for Breach of Covenants in an Indenture of Charterparty, in not paying for Demurrage, Primage, the Dover Duty, and for Freight,” as well as later pleadings.
35. 2 Mallory, Modern Entries 211–215, setting out a declaration in “Debt for £800 upon a Charterparty of Affreightment.”
36. The foregoing language literally describes the historic form of the charter party, a term derived from the Latin charta partita, “divided paper.” Although the practice had long been abandoned, originally many kinds of legal documents were written in duplicate on a single piece of paper, which was then cut in half on an irregular line running through a word. The two halves could be fitted together to prove the genuineness of the document. Another survival of this practice is the familiar opening phrase of the deed of realty, “This indenture witnesseth.” See Charles Abbott (Lord Tenterden), A Treatise of the Law Relative to Merchant Ships and Seamen 121–122 (Phila., 1st Amer. edn., 1802); Plucknett, Concise History 612–613.
37. Despite the use of the word “demised” this does not appear to be what is today called a demise or bareboat charter, in which the owner furnishes a crewless, victual-less vessel, and the charterer becomes owner pro hac vice. See Gilmore and Black, Law of Admiralty 170–172, 215–219. The charter here is described as one of “freightment,” and it is for a single voyage. Ruddock, the owner, is also described as “Master,” suggesting that he was to retain control of the vessel for the voyage in question. Even today these elements would indicate that the owners were exercising that degree of control which would make this a voyage charter (or “charter party of affreightment,” as it is sometimes called). This would be so despite the fact that the charterers here undertook to pay “the charges for victualling and manning” the vessel (text below). See Gustavus H. Robinson, Handbook of the Law of Admiralty in the United States 594–598 (St. Paul, Minn., 1939). In the 18th century the term charter party seems to have been limited to a contract with these and other attributes of the modern voyage charter. The transaction that would now be classed as a demise charter was considered an altogether different type of contract. See Abbott, Merchant Shipping 76, 121. See also Charles Molloy, De Jure Maritimo et Navali 255–258 (London, 8th edn., 1744).
38. The remainder of the declaration is probably in the hand of Jonathan Williams.
39. The remainder of the declaration appears on p. 30 in the MS.
40. In JA's hand. Pleadings Book, p. 27. In this case JA was of counsel for the defendants, Nathaniel Henshaw and Jonathan Williams, both at the April 1771 Suffolk Inferior Court, where a verdict was entered against them, and at the Aug. 1771 term of the Superior Court, where they lost a second time. The writ, dated 11 March 1771, was probably drawn by Josiah Quincy Jr., who entered the action. See Wendell v. Williams, Min, Bk., Inf. Ct. Suffolk, April 1771, No. 145; Henshaw v. Wendell, SCJ Rec. 1771, fol. 213; Min. Bk. 95, SCJ Suffolk, Aug. 1771, N–2; SF 101887. Both Oliver Wendell, plaintiff here, and his cotenant, Jonathan Jackson, were ancestors of United States Supreme Court Justice Oliver Wendell Holmes. Wendell was Holmes' paternal great-grandfather; Jackson (1743–1810), father of Charles Jackson who sat on the Supreme Judicial Court from 1813 to 1824 and who wrote an important treatise on real actions, was his maternal great-grandfather. See Mark DeWolfe Howe, Justice Oliver Wendell Holmes: The Shaping Years, 1841–1870 177–180 (Cambridge, Mass., 1957). The deed under which Wendell claimed was a mortgage deed, the defendants being second mortgagees who had probably entered under their mortgage. Wendell was seeking to foreclose the mortgage as to them; he obtained a judgment for the sum actually owed him, or possession, if the sum was not paid within two months. See No. 13, note 3. Jackson, the cotenant, brought an identical suit against these defendants. See Jackson v. Williams, Min. Bk., Inf. Ct. Suffolk, April 1771, No. 124; Henshaw v. Jackson, Min. Bk. 95, SCJ Suffolk, Aug. 1771, N–1; SF 101886. JA's minutes are in Adams Papers, Microfilms, Reel No. 185.
The action here, labeled “ejectment” in accordance with usual Massachusetts practice, was in the nature of a writ of entry, in which the plaintiff declared upon the mortgage deed (or “covenant” as JA has here called it), rather than upon his seisin as mortgagee. This practice was said to be proper where the mortgage condition was part of the deed; the pleader was required to make “profert” of the deed (tender it in court), so that the condition would sufficiently appear. Stearns, citing similar forms printed in American Precedents 354–355 (Brookfield, Mass., 3d edn., 1821), criticized the procedure for its length and complexity, adding, “In its structure indeed, it is more like an action of covenant, or on the case, than a writ of Entry,” Stearns, Real Actions 253–254, 451–452. See note 2913 above. See also No. 17, notes 3–7.
41. Hog Island in Boston harbor, now the district known as Orient Heights in East Boston. Boston Streets, &c., 1910 245, 352.
42. The “profert” of the deed, note 5640 above. When profert was made, the defendant could demand “oyer.” In ancient practice this literally meant a reading of the deed in court. With written pleadings, however, it merely signified that the plaintiff had to set out in the record the deed or other instrument sued upon. See Sutton, Personal Actions 102–104. Compare Metcalf v. Hall, Form XXIII.
43. In JA's hand. Pleadings Book, p. 28–30. The files of this case have not been located. JA was of counsel for Coburn, and Samuel Quincy for White. At the April 1771 Suffolk Inferior Court, “Tender was admitted by the plaintiff” and the jury awarded him the sum tendered (£7 6s. 8d.), but allowed the defendant costs. Min. Bk, Inf. Ct. Suffolk, April 1771, No. 186. See JA's Office Book, April 1771, MQA. In a companion action, with tender also admitted, the plaintiff recovered £7 12s. 8d. and costs, more than the tender. Min. Bk., Inf. Ct. Suffolk, April 1771, No. 187. The pleas here were drawn by Samuel Quincy, counsel for the defendant. The plea of tender is one in which the defendant admits all or part of the liability, but asserts that he has offered to pay that part and been refused. See 1 Chitty, Pleading 473–474; 2 id. at 479–482. See also Sutton, Personal Actions 160–162. Note that here the declaration apparently alleged two of the common counts (note 15note 31 above), and that a virtually identical plea was offered to both. By way of replication, the plaintiff could deny that tender was made, or offer a variety of technical defenses to the plea. With the tender here admitted, trial must have been only on the matters which the defendant had denied. See 1 Chitty, Pleading 552–553; 2 id. at 645–650.
44. 2 Mallory, Modern Entries, under the heading referred to by JA contains a reference to p. 310–312, where numerous cases on the subject are digested.
45. 3 Gardiner, Instructor Clericalis 134, 136 (London, 4th edn., 1724), two pleas of tender in the original Latin.
46. 5 Bacon, Abridgment 1, tit. Tender and bringing Money into Court upon the common Rule. The rule, “by which the Money brought into Court is ordered to be struck out of a Declaration, is, from its being more frequently granted than that by which it is ordered that the Proceedings shall be stayed, called the common rule.” Of particular application to this case are id. at 14–19, 27.
47. See note 6044 above.
48. See note 6246 above.
49. “Ss,” commonly used in the statement of venue in pleadings and other forms, is said to be a contraction of scilicet, meaning “to wit.” Black, Law Dictionary.
50. The “common verification,” a requirement in pleadings (other than the declaration) which introduced new matter instead of offering an issue. Sutton, Personal Actions 86. The prayer for judgment following the verification is in the form proper for a plea of tender in assumpsit. 1 Chitty, Pleading 539–540.
51. This portion of the pleading is in effect a plea of non assumpsit (the general issue) to that part of the plaintiff's claim as to which no tender was alleged. See 2 Chitty, Pleading 480 note.
52. The “similiter,” the formal acceptance or joinder of issue required when a plea concluded “to the country.” 1 Chitty, Pleading 549, 570.
53. In JA's hand. Pleadings Book, p. 31–[32]. The writ, dated 6 Feb. 1771, was probably drawn by Robert Treat Paine, who appeared for Brayton at the March 1771 Taunton Inferior Court, where the jury returned a verdict in Brayton's favor for possession and costs. On the appeal JA joined Paine as counsel for Brayton. At the Superior Court's Oct. 1773 term, again at Taunton, the prior judgment was affirmed. See Robinson v. Brayton, SCJ Rec. 1773, fol. 152; Min. Bk. 100, SCJ Bristol, Oct. 1773; SF 145772. The “writ of intrusion” is a form of writ of entry proper when the plaintiff (or “demandant” as he was technically known) was a remainderman or reversioner after a life estate, who had been ousted by an “intrusion” (an entry by a stranger after the life estate had terminated and before the remainderman had entered). See Stearns, Real Actions 49, 143, 179–180. For another form, see id. at 443–444. As to the requisites of pleadings in writs of entry generally, see id. at 149–161. Compare notes 2913, 3014, above, and No. 17, notes 3–7. Israel Brayton, plaintiff here, had received a reversionary interest in the lands in suit by devise from his grandfather, Preserved Brayton, who had died in 1761. Preserved in 1753 had assigned a life interest in the lands to his daughter-in-law, Ruth Brayton (Israel's mother), in lieu of her dower interest in certain lands once owned by her husband John Brayton, which she had not released. Previously, in 1736 Preserved had sold or given these lands, which included those in suit, to John under a duly recorded conveyance. John sold them back to Preserved in 1743, but seemingly destroyed the deed before it could be recorded. John then sold the property to William Sherman, but in 1744 Preserved was able to obtain possession in an action of ejectment against Sherman at the Superior Court, in which he was allowed to prove the making of his deed from John and that Sherman had had actual notice of it. In 1770 Ruth Brayton died, leaving her daughter Elizabeth Brayton Robinson in possession of the premises for which Israel sued. See documentation in SF 145772 and a summary of the title in Paine's hand in MHi:Photostats (1768). In opposition to Israel's suit Elizabeth apparently claimed that the 1743 conveyance from John to Preserved was ineffective and that she was entitled to a share in the property under her father's estate. JA's minutes of the argument on this question show that he urged authorities to the effect that Preserved's 1744 judgment could be admitted as evidence of his title, and that, in the alternative, depositions and oral testimony as to the fate of the deed and its contents were admissible. Adams Papers, Microfilms, Reel No. 185. A note with JA's Oct. 1772 Docket records that the “Court determined unanimously that Evidence should be admitted of the Deed from Jno. Brayton to his father and of the Destruction of it,” an apparent straightforward application of the so-called best evidence rule. Although this note indicates that the question was decided in Oct. 1772, the Paine Law Notes date the argument in Oct. 1773.
54. A dwelling house, perhaps including its outbuildings and immediate surroundings. Black, Law Dictionary. The restraint of the Massachusetts draftsmen in employing technical terminology is admirable. Compare Mrs. Shandy's marriage settlement in Laurence Sterne, The Life and Opinions of Tristram Shandy, Gentleman 41 (N.Y., Modern Library edn., undated): “All that the manor and lordship of Shandy, in the county of ——, with all the rights, members, and appurtenances thereof; and all and every the messuages, houses, buildings, barns, stables, orchards, gardens, backsides, tofts, crofts, garths, cottages, lands, meadows, feedings, pastures, marshes, commons, woods, underwoods, drains, fisheries, waters, and water courses;—together with all rents, reversions, services, annuities, fee farms, knights' fees, views of frankpledge, escheats, reliefs, mines, quarries, goods and chattels of felons and fugitives, felons of themselves, and put in exigent deodands, free warrens, and all other royalties and seignories, rights and jurisdictions, privileges and hereditaments whatsoever.”
55. That is, the devise was to Israel (Preserved's son) and to Israel's heirs.
56. George II (1727–1760). As to these and the following phrases descriptive of Preserved Brayton's seisin, see note 3014 above.
57. Ruth Brayton was seised “as of freehold,” rather than “as of fee,” because her interest was a life estate, rather than a fee simple. See Stearns, Real Actions 153–154.
58. The basis of JA's query has not been determined. It may have been the fact that Israel Brayton was devisee of the reversion, rather than the actual reversioner or his heir. At least in later practice the writ presumably lay in such a case, however. See Stearns, Real Actions 2, 143, 179–180, 194. Whatever the problem, it was never resolved; the action went to the jury in both courts without a question of law being formally raised. See note 6953 above.
59. In JA's hand. Pleadings Book, p. [33]. The original, dated 15 June 1771, was drafted by James Otis, who was Palmes' counsel at the July 1771 Suffolk Inferior Court where he lost on a demurrer to the plea. Samuel Quincy represented Greenleaf. Min. Bk., Inf. Ct. Suffolk, July 1771, No. 245. The writ, in Otis' hand, is in the Inferior Court files. At the following Superior Court, with JA and Josiah Quincy now representing Palmes, the case went to the jury, which found for the defendant. SCJ Rec. 1771, fol. 215; Min. Bk. 95, SCJ Suffolk, Aug. 1771, N–10; SF 101891. The case arose from Palmes' status as a material witness in the Boston Massacre trials. See editorial note to Nos. 63 and 64, note 63. Greenleaf was sheriff of Suffolk County. Whitmore, Mass. Civil List 79.
60. In JA's hand. Pleadings Book, p. [34–35]. The writ, dated 31 Aug. 1770 and returnable to the Oct. 1770 Suffolk Inferior Court, was probably drafted by Samuel Fitch, who entered the action there. The Inferior Court Minute Book indicates that “Ad[ams]” represented the defendant in Jan. 1772, when £80 damages were awarded to the plaintiff on a demurrer to the plea. According to copies of the proceedings below in the Superior Court files, however, JA appeared for the plaintiff, and the defendant was represented by Josiah Quincy Jr. It is probable that the Minute Book entry is a clerical error. On appeal to the Superior Court the matter was referred, and in Feb. 1773 the defendant was awarded costs of £7 8s. 2d. Min. Bk., Inf. Ct. Suffolk, Oct. 1770, No. 280; Jan. 1772, No. 21; SCJ Rec. 1773, fol. 3; Min. Bk. 95, SCJ Suffolk, Feb. 1772, N–10; Min. Bk. 98, SCJ Suffolk, Feb. 1773, C–40; SF 102250b. Papers in the file indicate that the goods in suit were in storage at Greenoch, Scotland, where they had been unloaded at the desire of the majority of the cargo owners when the vessel had been seized in an action against her owner. The declaration is one in special assumpsit that that does not set out a bill of lading in express terms, but in reciting the contract uses the standard language of the bill. For similar forms, see 2 Chitty, Pleading 159–161; Perham, American Precedents 141–142. For a similar but much simpler form, see Holden v. Conner, Form I.
61. “A small sailing vessel resembling a brig, carrying a main and foremast and a supplementary trysail mast close behind the mainmast.” OED.
62. In an unidentified hand, presumably that of one of JA's clerks. Pleadings Book, p. [36–37]. The writ, dated 29 Aug. 1772, was probably drawn by JA, who was of counsel for Thomas Loring at the Plymouth Inferior Court, Oct. 1772, where judgment was entered for Mary Loring on a demurrer to the plea. At Plymouth Superior Court in May 1773, with JA still appearing for Thomas, the case was referred. At the Taunton term in Oct. 1773 the report was read, the referees awarding Thomas his debt of £240 and costs. Robert Treat Paine represented Mary in both courts. Min. Bk. 94, SCJ Plymouth, May 1773, N–5; SF 142520. (No record reference has been located.) As to the iron industry in Massachusetts, see Nos. 18–19, notes 4, 5. The size of the recovery was probably a result of the six-year statute of limitations on “all actions of debt grounded upon any lending or contract, without specialty.” Act of 20 Nov. 1770, c. 9, §2, 5 A&R 110.
The action of debt for a legacy stems from a quasi-contractual feature of the action which permitted recovery where one party was under a noncontractual duty to pay money to the other. See Fifoot, History and Sources 222–223; 1 Chitty, Pleading 91, 102; Shipman, Common-law Pleading 134. In England a pecuniary legacy was ordinarily sued for either in chancery or in the ecclesiastical courts. Lord Mansfield's decisions that indebitatus assumpsit lay, because a promise could be implied from the duty to pay imposed upon the executor who had received assets, were rejected toward the end of the 18th century, on the ground that the courts of law could not adequately enforce the wishes of the testator. See Atkins v. Hill, 1 Cowp. 284, 98 Eng. Rep. 1088 (K.B. 1775); Hawkes v. Saunders, 1 Cowp. 289, 98 Eng. Rep. 1091 (K.B. 1782); Deeks v. Strutt, 5 T.R. 690, 101 Eng. Rep. 384 (K.B. 1794). See also Alison Reppy and Leslie J. Tompkins, Historical and Statutory Background of the Law of Wills 145–150 (Chicago, 1928); Fifoot, History and Sources 408–410, 435 note. In Massachusetts, where there were neither chancery nor ecclesiastical courts, a statute provided that all “certain” legacies might be sued for at common law. Act of 14 July 1693, c. 8, §2, 1 A&R 122. The actions of debt and assumpsit were thus at least partially concurrent remedies of the legatee. Assumpsit seems to have been more commonly used because of the doctrine that debt lay only for a sum certain, which had to be proved exactly. Debt was a proper remedy, however, where, as in this case, the legacy was in the form of an annuity and only arrears were sought, the right to the annuity having ceased at the legatee's death. See 2 Dane, Abridgement 239; 5 id. at 103–104, 119–124, 238–239; 1 Chitty, Pleading 107–108; Perham, American Precedents 274–277.
63. In JA's hand. Pleadings Book, p. [37]. The records and files of this case have not been found. The suit is one in assumpsit against an executor for a legacy based on his implied promise to pay it. See Perham, American Precedents 140, 180–181. See generally note 7862 above.
64. In the hand of one of JA's clerks, perhaps Jonathan Williams. Pleadings Book, p. [38–39], The original writ in JA's hand is in Suffolk Inferior Court Files, Jan. 1773, No. 71. At the end of the declaration JA wrote out a plea of the general issue (nil debet), which the defendant, Daniel Fisher, signed. JA added a joinder of issue, but the plea was apparently withdrawn in favor of a demurrer to a sham plea filed for Fisher by Josiah Quincy Jr. There is no record of the result, but it must have favored Fisher, because the Woodwards' appeal was entered at the Feb. 1773 Superior Court. The case was settled before trial. In JA's Docket for this term, MQA, appears the notation “Ag[ree]d. 10d. Rec'd. £2 2s. 8d. in full.” See SCJ Rec. 1773–1774, fol. 6; Min. Bk. 98, SCJ Suffolk, Feb. 1773, N–3. This suit by a residuary legatee against a surviving executor is based on the executor's statutory duties. See note 8376 below; see also note 3721 above. Dr. Nathaniel Ames, the deceased executor, was the father of Fisher Ames and Dr. Nathaniel Ames Jr., whose political differences epitomized the split between Massachusetts Federalists and Jeffersonians in the forty years after the Revolution. Deborah Woodward, one of the plaintiffs, was Deborah Fisher Ames, daughter of the testator (who had died in 1766) and widow of Nathaniel Ames Sr. She married Richard Woodward on 23 Feb. 1772. Suffolk Files, Births, Marriages, Deaths, 1637–1774, No. 398. See Samuel Eliot Morison, By Land and by Sea 200–207 (N.Y., 1953); Charles Warren, Jacobin and Junto 4–5, 25 (Cambridge, Mass., 1931). For an earlier JA case between Deborah Ames and Daniel Fisher over Jeremiah Fisher's will, see Fisher v. Ames, Min. Bk. 91, SCJ Suffolk, March 1770, C–60; Feb. 1771, C–84; SF 101627, 101882; Adams Papers, Microfilms, Reel No. 185.
65. “Samuel Louchlen” in the file copy of the writ. Suffolk Inferior Court Files, Jan. 1773, No. 71.
66. Thomas Hutchinson was judge of probate for Suffolk County from 1752 to 1769. In August of the latter year, he was succeeded by his brother, Foster. See Whitmore, Mass. Civil List 80; 8 Sibley-Shipton, Harvard Graduates 163. The copyist here has omitted Hutchinson's full title, a statement that he “proved and approved” the will, and a repetition of his name. (JA in the original had inadvertently called him “Foster” as well as “Thomas.”) Suffolk Inferior Court Files, Jan. 1773, No. 71.
67. The suit here is based upon the Act of 26 Jan. 1739, c. 23, 2 A&R 977, which provided an “action of debt” for “any uncertain or residuary legatee” against an executor taking up his charge, who “against the tenor of the law in that case provided” should neglect “to give in a full and true inventory of the whole estate of the deceased, so far as is then come to his hands or knowledge, being duly served with a citation from the judge of probate to that purpose.” The executor was to forfeit £100 per month for every month's neglect, “over and above the penalty already provided.” The earlier statute referred to is the Act of 22 Nov. 1703, c. 12, §1, 1 A&R 536, providing that an executor who submitted a will to probate must within three months thereafter “(or at such further and longer time as the judge of probate shall see meet to allow, the circumstances of any estate requiring the same)” exhibit his inventory, or else give bond to pay the testator's debts and legacies. The penalty was forfeiture of £5 a month for each month's neglect to be recovered in accordance with a still earlier Act that established penalties for not presenting a will. That measure, the Act of 1 Nov. 1692, c. 14, §2, 1 A&R 45, provided for the recovery of forfeitures “by action or information, in the inferiour court of pleas in the same county, and to be disposed of, one moiety thereof to the use of the poor of the town where the deceased person last dwelt, and the other moiety to him or them that shall inform or sue for the same.”
68. In the hand of one of JA's clerks, probably Jonathan Williams. Pleadings Book, p. [40–42]. The records of this case have not been found. According to JA's Office Book, Suffolk Inferior Court, Oct. 1772, MQA, he received a fee of 12s., but the writ was “Not served.” The original of the writ, first prepared for the Oct. court but redated 21 Oct. 1772 and altered to the Jan. 1773 court, appears in SF 91338. On its verso are the words, “This action is satisfied, per Robt. Pierpont.” Pierpont's original action against William Barber was a suit on a note for £223 0s. 4d. sterling. His recovery at the April 1771 Suffolk Inferior Court was affirmed with costs in both courts on his complaint at the Aug. 1771 Superior Court when Barber did not prosecute his appeal. SCJ Rec. 1771, fol. 226; Min. Bk. 95, SCJ Suffolk, Aug. 1771, N–69; SF 101969. No copy of the execution has been found. According to the Minute Book, it was dated 9 Sept. 1771 and was “del[ivered to the] Creditor.” For another JA case involving Pierpont, see Pierpont v. Cutler, discussed in 2 JA, Diary and Autobiography8–9. Trespass on the case was the common remedy against the sheriff for his neglect, or that of his deputy, in serving process, levying execution, and the like. See 3 Dane, Abridgment 75; 1 Chitty, Pleading 69, 73, 140–141; 4 Bacon, Abridgment 442. See also Quincy, Reports 295–296. For forms, see Perham, American Precedents 222–231; 2 Chitty, Pleading 352–355.
69. The form of the writ of execution in personal actions is prescribed in the Act of 3 June 1701, c. 2, §1, 1 A&R 460, and discussed at length in the dissenting opinion of Trowbridge, J., in Richmond v. Davis, Quincy, Reports 279–297 (SCJ Suffolk, March 1768). It called upon the sheriff or his deputy to render to the judgment creditor the cash value of his judgment in “the goods, chattels or lands” of the debtor, if they were acceptable to the creditor; otherwise the body of the debtor was to be taken and held until the debt was satisfied or discharged. This writ combined the features of the English elegit and capias ad satisfaciendum, but did not contain the provisions of the writs of fieri facias and levari facias, under which the sheriff could sell the debtor's land or effects and pay the creditor the proceeds. See 2 Bacon, Abridgment 348–352. This situation was partially remedied by the Act of 14 July 1772, c. 12, 5 A&R 207, by virtue of which the sheriff was empowered to sell the debtor's chattels, apparently confirming a settled practice. See Quincy, Reports 297 note.
70. The clause beginning “for whose default” is omitted in the file copy of the writ. SF 91338.
71. The Act of 9 April 1742, c. 22, 2 A&R 1095, provided that, if an execution was returned unsatisfied or partially satisfied, the clerk of court might “ex officio, renew or make out an alias or pluries execution for the whole or the remainder, as the case may be, till the judgment be fully satisfied.”
72. Under the Act of 21 Nov. 1719, c. 9, §1, 2 A&R 150, when a creditor could not be satisfied out of the debtor's personal estate, if he “doth therefore think fit to levy upon the real estate” of the debtor, the sheriff was to proceed to have the lands appraised and an appropriate portion of them set off to the creditor.
73. The copyist has omitted the words “Of Great Britain and £3 2s. ad. Lawful Money,” which appear in the original writ. SF 91338.
74. In JA's hand. Pleadings Book, p. [45–47]. The writ was presumably drawn by Samuel Fitch, who entered the action at the Oct. 1772 Suffolk Inferior Court. After Josiah Quincy Jr., representing McCarney, prayed oyer (note 5842 above) and filed a plea in abatement (note 9377 below), the case was continued for the plaintiff to file a replication. The records do not indicate who won in the Inferior Court, but it was Clark who appealed to the Aug. 1773 Superior Court. There, with Blowers and Fitch representing Clark, and JA and Quincy appearing for McCarney, the plea in abatement was overruled and the case was continued for trial. After numerous additional continuances, the action was finally “dismist the appellant being” dead, in Aug. 1777. Min. Bk., Inf. Ct. Suffolk, Oct. 1772, No. 91; SCJ Rec. 1775–1778, fol. 140; Min. Bk. 98, SCJ Suffolk, Aug. 1773, N–26; Min. Bk. 103, SCJ Suffolk, Aug. 1777, C–47.
This case, a dispute between the owners of two paper mills, illustrates the problem which arises when a stream's water level drops so much that it cannot supply all the riparian users. The plaintiff claimed that his was the earlier mill, and that the defendant consequently was bound to shut down in a time of shortage. Thus the plaintiff relied on what has since become known as the rule of prior appropriation: “first in time is first in right.” This principle is the law in the arid West today, but it is not now followed in Massachusetts, and was not the rule at common law in England. See Maass and Zobel, “Anglo-American Water Law: Who Appropriated the Riparian Doctrine?” 10 Public Policy 109–156 (1960). The common law followed the so-called riparian principle: every bona fide riparian proprietor has an equal right to the use of the stream, and must consequently suffer a proportionate diminution of that right when the stream falls. This point was not raised by the pleadings and was never passed upon in the Superior Court, due to the action's being dismissed. The fact that Clark seemed to rely on a prior appropriation theory suggests two possibilities: (1) he may have sought to assert a right by prescription, which would have had the same effect on the defendant as an application of the prior appropriation rule; (2) the Massachusetts lawyers may have, in substance, if not in form, followed the principle of priority. See note 10892 below for a further discussion of this point. For other water cases, see Nos. 14, 18–2119,||20–21||.
75. Hutchinson to Lords Commissioners for Trade and Plantations, Sept. 1769, 25 Mass. Arch. 330: “I must acquaint your Lordships that a paper mill which had been erected in the Town of Milton within this Province having gone to ruin, one James Boies, who had sometimes improved this mill, about three or four years ago erected a new mill upon the same stream, about two miles distance from the former where more paper has been manufactured than had been at the former mill in the course of thirty years, and the undertaker meets with such encouragement that he is preparing to erect another paper mill near to the first mentioned and the owner of the first mill is also rebuilding that.” This mill had apparently been the source of paper for John Mein's Chronicle (see Nos. 5 and 12). Arthur M. Schlesinger, The Colonial Merchants and the American Revolution 164 (N.Y., 1918). See Boies and Clark v. Russell, SF 91619 (Suffolk Inferior Court, 1771), for an action to collect an account for “fine Crown” paper and “foolscap.”
76. Boston Gazette, 22 Feb. 1773, p. 4, col. 1: “To be Sold. The real Estate of Richard Clark, of Milton, near the Slit-Mill, Consisting of ... upwards of Eight Acres of Land, with Half Part of the Paper Mill, and Utensils thereto belonging, with Half Part of the Negro Caesar and Half Benefit of three Apprentices. The Paper-Mill having the Command of the Water in the Summer Months.”
77. The plea in abatement was a dilatory plea going to the sufficiency of a particular writ, rather than to the merits. Because of the distaste with which the courts affected to view such pleas, it was necessary under the strict common-law rules that the different causes for abatement be pleaded in proper order or else be waived. The order was: (1) the jurisdiction of the court; (2) the capacity of the plaintiff; (3) the capacity of the defendant; (4) the count or declaration; and (5) the writ, 1 Comyns, Digest 1–2. The first two matters pleaded here go to the capacity of the plaintiff. Id. at 11–14. The third item in the plea asserted a repugnancy or inconsistency in the declaration. Id. at 38–39. The fourth and fifth items seem to raise the defense of nontenure, a lack of capacity in the defendant. Id. at 27–28. Joseph Story's comments on similar pleas are a good example of the way in which such indigenous forms were later modified to conform to English practice: “It was the common practice in this Commonwealth, till within a few years, to take all objections to the writ and declaration, by a plea in abatement. The mode of assignment was to pray judgment of the writ; and then state the various objections, however numerous or different in nature, in regular display, (as causes are assigned on special demurrer) and then conclude the whole, united in a single plea, praying judgment of the writ, that it might be quashed. In this way misnomer, coverture, infancy, misjoinder, and defects of the count were united, and judgment given according to the prayer of the plea. So that in fact all defects in the declaration, which are now stated as causes of special demurrer, were tried by pleas in abatement. It is apprehended that this practice was irregular, when compared by English rules in many respects.” Joseph Story, A Selection of Pleadings in Civil Actions 59–60 (Salem, Mass., 1805). The plea here obviously violates the common law principles of order. Moreover, it is faulty in two of the “many respects” which Story went on to enumerate: (1) It was improper to plead more than one matter in the same class. See Zuill v. Bradley, Quincy, Reports 6, 7 (SCJ Suffolk, Aug. 1762), apparently permitting such duplicity. (2) Despite older precedents, the 18th-century English view seems to have been that defects in the declaration should be raised on demurrer. See 1 Comyns, Digest 70; 5 Dane, Abridgment 708; see also 1 Chitty, Pleading 438, 442.
78. The “defense” presented special problems in the plea in abatement. The “full defense,” quoted in note 22note 38 above, was in earlier practice considered improper for a plea in abatement, since it admitted most objections to jurisdiction and capacity. The correct usage was the “half defense”: “comes and defends the force and injury and says.” In the abbreviated form used here the addition of “when” was at first supposed to indicate a full defense, but later cases said that it could stand for either full or half. After three pages of learned discussion, Story concluded, “Indeed, since the common contraction of them is the same, and the Court will intend the abbreviation, either, according to the case in which they occur, ... there seems no objection to use the common form, 'comes and defends the force and injury, when, &c.' in all cases whatsoever.” Story, Pleadings 3–4.
79. See No. 18.
80. In JA's hand. Pleadings Book, p. [49–50]. JA, representing plaintiffs Hannah and Deborah Metcalf, filed a special demurrer to the plea printed here, which was decided in the plaintiffs' favor at the Jan. 1773 Suffolk Inferior Court. At the Superior Court in Feb. 1773 the demurrer was argued again and the previous decision on it upheld. The case was continued for “chancery” (determination of the actual damages). At the next term, one Hannah Messenger, who had related claims against defendant Jeremiah Hall, was admitted an additional plaintiff and the case was referred, the parties agreeing not to “employ any sworn Attorney to appear for them before said Refferees.” The referees awarded the plaintiffs £105 damages and costs of £27 12s. 3d. SCJ Rec. 1773–1774, fol. 105; Min. Bk. 98, SCJ Suffolk, Feb. 1773, N–2; Aug. 1773, C–49; SF 102308. The suit was brought on a bond for £213 6s. 8d. given to Hannah and Deborah Metcalf by Hall to secure his performance of an agreement of the same date (the “sarting Articals” of the plea) under which he took control of all their real and personal estate, agreeing to pay certain debts for them and to provide for them until the funds were exhausted. According to Hall's statement in the file, the suit was instigated by Ezekiel Needham, with whose son Hall was currently in litigation. See note 4226 above. Needham, seeking to ruin Hall, had first persuaded the ladies to leave the latter's house and had personally removed their household goods, making it impossible for Hall to perform his obligations. The statement continued, “and if this ant a most wicked abusive transaction done to me who have almost put my life in my hand in their troubles and all because I ask them for my Just Right which is as justly due to me Now as ever a Copper was due to any Man on Earth.” Hall's account is borne out by the fact that Needham endorsed the Metcalfs' writ, but there was also testimony in the file that Hall had not been taking proper care of his charges. SF 102308.
The plea printed here was presumably drawn by Josiah Quincy Jr., who represented Hall in the Inferior Court. Oyer of the bond and condition (note 5842 above) was followed by an affirmative plea of performance. JA's demurrer (SF 102308) began with a clause “protesting” that Hall had not performed his obligation as he had pleaded. This was a protestando, used in a plea or replication that traversed only part of a preceding pleading to avoid a conclusive admission of the part not traversed. The device was ordinarily not used in a demurrer, perhaps on the assumption that admissions on demurrer were not conclusive in any event. There was little or no authority to the latter effect in the 18th century, however, and occasional examples of the practice are found. See Shipman, Common-law Pleading 282–293, 358–359; Sutton, Personal Actions 112–113, 177–179; Story, Pleadings 322–323; 6 Dane, Abridgment 213; John Lilly, Modern Entries 231 (London, 2d edn., 1741); 5 Comyns, Digest 115–116, 126–127. See also Lee v. Boothby, 1 Keble 720, 83 Eng. Rep. 1205 (K.B. 1676). The remainder of the demurrer, in form similar to that in Apthorp v. Gardiner, No. 9, Doc. III, asserted that the plea was insufficient because Hall had not “set forth in certain what those Sarting Articals and Agreement indented, and bearing even date with the said Bond, made between Jeremiah Hall on the One part and Hannah Metcalf and Deborah Metcalf on the other part mentioned in the said Jeremiah's said Plea, were in particular, as he ought to have done.” The court's decision upholding the demurrer was in accord with English authority to the effect that when the condition of a bond was to perform the covenants in an indenture, the defendant must set out at least the substance of the indenture. See Stephen, Pleading 366–368; 2 Chitty, Pleading 530–532; Story, Pleadings 240–241; Jevens v. Harridge, 1 Saund. 8, 9, 85 Eng. Rep. 8, 12 (K.B. 1678). The citation in the next line of the text is to Chaloner v. Davis, 3 Ld. Raym. 273, 92 Eng. Rep. 684 (C.P. 1696), a declaration in covenant on a performance bond. See 1 Ld. Raym. 400, 91 Eng. Rep. 1166.
81. Thus in MS, and in the file copies of the Inferior Court record and the actual bond. The file copy of the plea reads “without covent.” SF 102308. The reading in the text here seems the correct one. The meaning is probably “with all things covenanted.”
82. In the text of the file copy of the plea (SF 102308) the passage beginning “for his Part, in all Manner ...” and ending at this point is in quotes, indicating that the pleader was reciting performance in terms of the condition of the bond. This would have been sufficient had the condition not referred to covenants in the indenture. See Stephen, Pleading 362–366.
83. In JA's hand. Pleadings Book, p. [53–55]. The writ, drawn by Samuel Fitch, is dated 27 Nov. 1772. It and the bond are in the Suffolk Inferior Court Files, Jan. 1773, No. 268. No record of subsequent pleadings or of the outcome has been found. The action of replevin was unique amoung common-law forms, in that prior to suit the plaintiff could have redelivery of a chattel alleged to have been wrongfully taken and detained by the defendant. If judgment for the plaintiff then followed, he might be awarded damages for the taking; otherwise the court ordered a return of the goods to the defendant. Unless he had not taken the goods, the defendant ordinarily pleaded a so-called “avowry” in which he justified the taking by stating affirmatively his claim to the chattel. The plaintiff then responded with a plea, and the pleadings proceeded as in other actions, but with the roles reversed. See Sutton, Personal Actions 91–94, 166; 1 Chitty, Pleading 162. Replevin originally could be brought only by one injured through wrongful distress (the taking of chattels from a wrongdoer to satisfy his liability). Although Blackstone still considered the action as thus limited, it had in fact earlier been expanded by the courts to include other wrongful takings. In 18th-century England there was authority supporting the latter position, but the action seems to have been limited in practice to cases of distress. See James Barr Ames, Lectures on Legal History 69–70 (Cambridge, Mass., 1913); 3 Holdsworth, History of English Law 285 note; 1 Chitty, Pleading 159 note; 3 Blackstone, Commentaries “146; 4 Bacon, Abridgment 384–385; Sir Geoffrey Gilbert, The Law of Distresses and Replevins 157–165, 257–342 (London, 1757).
In Massachusetts the Act of 10 June 1698, c. 6, §2, 1 A&R 322, permitted owners of cattle taken damage-feasant to bring replevin; a later Act, prescribing a form of the writ substantially like that followed here, provided that the action could not be brought against an officer distraining goods for taxes, fines, and forfeitures. Act of 6 Dec. 1720, c. 13, §2, 2 A&R 188. After the Revolution, a Massachusetts statute extended replevin to goods taken other than by distress. Act of 24 June 1789, §4, [1788–1789] Acts and Resolves 430–436. Although this enactment might be construed to mean that the prior practice had been narrower, the fact that the Act of 19 Feb. 1787, [1786–1787] Acts and Resolves 182–187, had established the writ of de homine replegiando, earlier used without statute in a slavery case, No. 40, suggests that the 1789 measure merely codified existing law. The instant case supports this view, since it does not involve a distress.
The use of replevin here is of particular interest because of the maritime nature of the subject matter. The contract of “bottomree” (i.e. bottomry), under which the plaintiffs claimed an interest, was a common device for financing marine ventures, in which the lender was secured by a lien on the vessel, but could receive payment only if she reached port safely. The transaction here was a loan to the master of a vessel for ship's necessaries in a foreign port, for which the owners were not personally liable; the customary remedy was a libel in rem in Admiralty. This was a proceeding beyond the power of the common law, brought directly against the vessel, in which she could be seized and sold to meet demands secured by maritime liens. Although the common-law courts had severely restricted the Admiralty jurisdiction in the 18th century, this was one variety of action which, for want of another remedy, was excepted from the restriction. See Gilmore and Black, Law of Admiralty 480–519; Arthur Browne, A Compendious View of the Civil Law and of the Law of Admiralty, 2:84–85, 195–196 (London, 2d edn., 1802); Charles Molloy, De Jure Maritimo et Navali, bk. 2, c. 11, §n (London, 8th edn., 1744); 8 Holdsworth, History of English Law 261–263. This case came up at a time when the Massachusetts Vice Admiralty Court was being attacked for its role in enforcing the Acts of Trade. See vol. 2:102–104, notes 17, 22, 24. The declaration here thus may represent an ingenious attempt to avoid the necessity of proceeding in Admiralty by using the only common law form which, like a libel in rem, was concerned not with personal liability, but with rights in the res. In all probability the tactic failed. Assuming that replevin lay in a case other than distress, a wrongful taking from one with possession or the immediate right to possession was nevertheless a necessary element. See 1 Chitty, Pleading 158–160; Abbott, Shipping 101; Gilmore and Black, Law of Admiralty 480–482.
84. That is, discharging liens for repairs already made.
85. A civil-law term meaning a pledge in which the pledgor retained possession of the res. Black, Law Dictionary. In later usage the term was expressly applied to the kind of transaction here, to distinguish it from ordinary bottomry, in which a loan was made to the owner in his home port and on his personal credit, as well as on the credit of the vessel. 2 Browne, Civil Law 196–197. The principal work on maritime law in use before the Revolution did not make the distinction, however. See Molloy, De Jure Maritimo, bk. 2, c. 11, §11.
86. Possibly in the hand o£ Nathan Rice, JA's clerk. Pleadings Book, p. [56]. The action was commenced, with Thomas Flucker, secretary of the Province, as co-plaintiff, in the April 1773 Suffolk Inferior Court; the writ, dated 10 Feb. 1773, is in JA's hand. Suffolk Inferior Court Files, April 1773, No. 217. Noyes defaulted, and judgment of £39 13s. 10d. and costs was entered. (No explanation appears for the two-shilling discrepancy between this figure and the figures in the declaration.) At the Aug. 1773 Suffolk Superior Court, the defendant failed to prosecute his appeal, and judgment was entered for plaintiffs on an affirmation in the sum of £40 9s. 4d. and £4 11s. costs. SCJ Rec. 1773–1774, fol. 113; Min. Bk. 98, SCJ Suffolk, Aug. 1773, N–47; SF 102305. JA represented Palmer; Benjamin Kent, Noyes. The file papers indicate that the original action concerned payment for 69 hats and two pieces of “English duck.” The defendant defaulted. Min. Bk., Inf. Ct. Suffolk, Oct. 1771, No. 139.
A recent statute had created a direct “action of debt” on a judgment. Act of 6 March 1773, c. 32, 5 A&R 231, 232. Ostensibly, this statute merely remedied the problem that arose because “when judgment is rendered, if the party obtaining it dies, no execution can be sued out thereon, without a writ of scire facias being first brought and prosecuted with effect; and because, upon a writ of scire facias, neither the goods or estate of the debtor can be attached, nor his body taken, the debt may be lost.” (A scire facias had the effect of reviving the judgment, but a new execution was necessary. R. Pound and T. F. T. Plucknett, Readings on the History and System of the Common Law 449 [Rochester, N.Y., 3d edn., 1927].) But the statute is very broad, and provides that “when judgment is given in any court of record, and remaineth in force, the party obtaining it, his or their executors or administrators, may, instead of a writ of scire facias, have and maintain an action of debt upon such judgment, in the same court where the record thereof remaineth.” 5 A&R 232. This is the only Province statute on the point, but the action of debt on a judgment was used in Massachusetts before 1773. See, for example, Tirrell v. Clark, SF 85178 (Suffolk Inferior Court 1764), in which JA drew a writ almost identical to the one here. For later forms, see Perham, American Precedents 271–272.
The statute seems to have embodied the English rule that if a plaintiff “hath once obtained a judgment against another for a certain sum, and neglects to take out execution thereupon, he may afterwards bring an action of debt upon this judgment, and shall not be put upon the proof of the original cause of action; but upon shewing the judgment once obtained, still in full force, and yet unsatisfied, the law immediately implies, that by the original contract of society the defendant hath contracted a debt, and is bound to pay it. ... [But] actions of debt upon judgment in personal suits have been pretty much discountenanced by the courts, as being generally vexatious and oppressive, by harrassing the defendant with the costs of two actions instead of one.” 3 Blackstone, Commentaries *158–159. The common-law action was also available to an executor, 1 Dane, Abridgment 161. Debt was the sole remedy here, because indebitatus assumpsit could not be brought on a judgment. James Barr Ames, Lectures on Legal History 160 (Cambridge, Mass., 1913); 8 Holdsworth, History of English Law 89. The 1773 Act may have been deemed necessary because the whole process of levy of execution in Massachusetts was statutory. See notes 8569, 8771, 8872, above.
87. In the hands of JA and a clerk, possibly Jonathan Williams. Pleadings Book, p. [57]. The writ, dated 21 June 1773, was drawn by Sampson Salter Blowers, who represented Laughton in both the Inferior and Superior courts. The original writ in Blowers' hand, with pleadings signed by JA, is in Suffolk Inferior Court Files, July 1773; No. 286. JA was of counsel for the defendants throughout the litigation. In July 1773 at the Suffolk Inferior Court, Laughton was awarded possession on a demurrer to JA's plea that the defendants “do not know the said William Laughton.” At the Superior Court in Aug. Laughton prevailed again on the defendants' confession of judgment for possession and costs. SCJ Rec. 1773–1774, fol. 108; Min. Bk. 98, SCJ Suffolk, Aug. 1773, N–15; SF 102278. This is an action of ejectment in the form commonly employed in the English courts. The declaration alleges a lease, collusive or fictitious, from the party claiming the premises to a straw or nonexistent person, in whose name the proceeding is actually brought. Compare note 182 above; see also No. 17, note 5. Although these proceedings might reflect an arms' length transaction between the parties, that they do not here is indicated by a bill of costs in the file drawn by Blowers as attorney for “Laughton on the Case of Warden et ux. appellees vs. Pitts et al. appellants.” SF 102278. Further, on the Inferior Court writ, cited above, the name Warden has been crossed out and that of Laughton written in.
88. The premises were between Marlboro (now Washington) Street and Bishop's Alley (now Hawley Street). SF 102278.
89. Not a reference to agricultural activity, but a literal translation of the original Latin form, meaning the leasehold itself. See 2 Chitty, Pleading 442 note.
90. Possibly in the hand of Jonathan Williams, JA's clerk. Pleadings Book, p. [58–59]. The litigation dragged on for over 20 years. The original writ, bearing Josiah Quincy's name, dates from 21 Sept. 1773. SF 91749. Documentation has not been found for the proceedings at the Oct. 1773 Suffolk Inferior Court (although there is a suggestion that Samuel Fitch represented Gillespie), but Boies apparently prevailed, because the Superior Court and Supreme Judicial Court Records and Minute Books carry the case as “Gillespie v. Boies.” Originally entered in Feb. 1774, Gillespie's appeal was continued to Aug. 1777, when it was dismissed for an unspecified “irregularity of the proceedings in the lower Court.” SCJ Rec. 1775–1778, fol. 141; Min. Bk. 103, SCJ Suffolk, Aug. 1777, C–74. Boies recommenced his action, which came to trial for the first time in the spring 1779 Suffolk Inferior Court. Gillespie again appealed, and filed a prayer “that a Jury may go uppon the Spot, in order that real Justis may be done, & the Matter Finish'd this Term.” SF 1026791). After assorted continuances, the matter was apparently settled, for in SJC Rec. 1784, fol. 1, is the final notation: “Neither party appears.” See also Min. Bk. 2, SJC Suffolk, Feb. 1784, C–1. For another suit between the same parties, see Boies v. Gillespie, Suffolk Inferior Court Files, April 1774, No. 202.
91. Boston Gazette, 5 Nov. 1770, p. 3, col. 2: “The old Slitting Mills at Milton is now in good Repair: At which Place good NAIL RODS may be had at 30s. per Hundred.”
92. A consequence of the riparian system of water rights (note 9074 above) is that the right to use of the water inheres in the very ownership of bankside realty. Unlike the prior appropriation system, where the right to water does not exist unless and until the water is actually used, the riparian system confers on the proprietor a perpetual right to the flow of water. A riparian landowner can lose his water right in only two ways: he can grant it to another proprietor; or he can suffer another proprietor to take the right away by prescription (open and long-continued usurpation). To say that a right to water may be lost by prescription is not the same thing as saying that this right may be acquired only by prescription. The first thought is entirely compatible with the riparian system; the second is wholly foreign to it, being in fact another way of expressing the doctrine of prior appropriation. In the debate which has simmered for the past half-century on the issue whether the common law was appropriative or riparian, a focus of inquiry has been the old pleadings, particularly the declarations. 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). It was argued that because so many of the old declarations used language importing prescription, the water rights involved must have depended on prescription; in other words, prior appropriation was the key to those rights. The counter-argument was that no matter how the pleadings read, the facts of the cases and the language of the judges indicated that water rights followed riparian ownership.
In the absence of reported judicial opinions, it is difficult to determine the 18th-century Massachusetts rule. The point was raised in neither the declaration nor the plea in Clark v. McCarney, Form XXII. Language in the present declaration (“from time immemorial have been accustomed and ought to have the Benefit of a certain Water or Water-Course”) sounds in prescription; another “water” case in the Wetmore Notes, Symonds v. Traske (Essex Inferior Court? ca. 1771), likewise alleges “that a spring of Water ran thro' [plaintiff's land] for time immemorial ... and still ought to run.” Adams Papers, Microfilms, Reel No. 184. And all the relevant forms in Perham, American Precedents 196, 199–200, use similar language. But the Wetmore Notes show that counsel in Symonds v. Traske, at least, knew of English forms noting that the ancientness of the watercourse need not be alleged. See, for example, 1 Mallory, Modern Entries 482–483.
93. In JA's hand. Pleadings Book, p. [61]. The records and files of this case have not been found. The action was one in trespass quare clausum fregit — “wherefore he broke the close.” (“Close” was a term of art referring to any interest in the soil, whether enclosed or not.) This was the remedy of one in actual possession of land for an injury to the land through or during a wrongful entry. For the remedies of one out of possession, see notes 2913, 10387, above. The judgment awarded money damages, but the action could be used to determine the right to possession. See 8 Holdsworth, History of English Law 467; 1 Chitty, Pleading. 173–183; Shipman, Common-law Pleading 66–82; Perham, American Precedents 333–339; 5 Dane, Abridgment 567; Act of 20 Nov. 1770, c. 9, §4, 5 A&R 110. That determination of rights rather than recovery of damages was the object of this suit is suggested by the fact that the plaintiff could have obtained damages for injuries to his trees, soil, and grass, through a statutory action in which the defendant bore the burden. Act of 21 June 1726, c. 3, §§1–3, 2 A&R 383–384; Act of 10 June 1698, c. 7, §4, 1 A&R 324. See Perham, American Precedents 334. Note that the declaration alleges that the trespass was from its beginning “to the Day of the Purchase of this Writ, at Sundry days and Times continuing.” Such an allegation, called a “continuando,” was proper when the trespass complained of was a continuing act, rather than a series of independent actions. Some authorities at least might have considered the cutting of trees to be in the latter class. See id. at 51–52, 338–339; Sutton, Personal Actions 159.
94. Probably in the hand of Edward Hill, JA's clerk. Pleadings Book, p. [62]. Documentation of this case is fragmentary. The original writ in the hand of Benjamin Kent is dated 6 Jan. 1773, returnable to the April 1773 Suffolk Inferior Court. SF 91649. JA's Office Book, April 1773, MQA, shows that he was retained by Littlefield and carries the notations “Fini[shed]” and “to be abated,” which may mean either that the writ was abated, or that JA intended to plead in abatement. No other indication of the result has been found. For a related action in trover for an anchor between the same parties, in which JA was also of counsel for Little-field, see SF 91671; Office Book, April 1773, MQA.
The problem in the present case was that the transaction was an exchange rather than a sale of goods. By his contract the plaintiff was entitled to eleven gallons of rum, but none of the remedies available to him could provide this recovery. He could not rescind the contract and get back the rum which he had originally given to the defendant, because, in the absence of fraud, title passed to the defendant on delivery. A right to possession was necessary to maintain detinue or replevin, the usual actions for the recovery in specie of wrongfully detained goods. See 2 Blackstone, Commentaries *447–448; 2 Kent, Commentaries *496, *514; Shipman, Common-law Pleading 117–118, 125–128. Detinue and replevin were similarly unavailable for the rum which the defendant had agreed to furnish, because they lay only for specific chattels, and no particular eleven gallons seem to have been intended here. In addition, replevin was not available where, as here, the plaintiff had consented to the original taking. Id. at 114–131; note 9983 above.
Some legal historians say that debt or indebitatus assumpsit lay to recover unascertained chattels due by contract, but 19th-century authorities made clear that in such a case a showing of the value of the chattels would be required and that the recovery would be in money. Ames, Lectures on Legal History 89; Fifoot, History and Sources 24–28, 243; see 5 Dane, Abridgment 308; Mayor of Reading v. Clarke, 4 Barn. & Aid. 268, 106 Eng. Rep. 936 (K.B. 1821); 2 Chitty, Pleading 38 (Springfield, Mass., 13th Amer. edn., 1859). Even if recovery in specie might have been allowed under these forms, the action of debt for chattels had fallen into disuse by JA's time. He and his contemporaries could well have concluded that Blackstone meant to exclude the recovery of goods when he said, “The legal acceptation of debt, is a sum of money due by certain and express agreement.” 3 Blackstone, Commentaries *153. Since it was commonly (although erroneously) considered that indebitatus assumpsit lay only where debt lay, it would have been logical for the 18th-century lawyers to assume that neither remedy existed in this case. See Fifoot, History and Sources 365. For cases following this logic, see Watson v. M'Nairy, 1 Bibb (Ky.) 356 (1809); Spratt v. M'Kinney, id. at 590, 595 (1809).
If the plaintiff could not obtain the rum in specie, he would have to be satisfied with money damages. Trover, the common remedy in damages for the wrongful appropriation or detention of a chattel, would not lie either for the rum originally given by the plaintiff or that owed him by the defendant, on the same reasoning that barred recovery in detinue or replevin. Shipman, Common-law Pleading 101–107. The remedy in debt or indebitatus assumpsit on the contract might have sufficed, but there is good reason to think that it would have been held unavailable. Both indebitatus assumpsit on the common count for goods sold and delivered and quantum valebant (note 3115 above) were based on a fictitious undertaking of the defendant to pay for goods either their price or their reasonable value, measured at the time of making the contract. Although there was some disagreement, a substantial body of later authority held that these actions were inappropriate where the defendant was to pay in chattels, because the plaintiff had bargained to receive the value of the goods at the time of his demand, which might be higher or lower than the value at the time of sale. According to this authority, the proper form of action was special assumpsit, in which the measure of damages was the loss occurring to the plaintiff through the breach — in this case the value of the rum at the time of the demand. See Mitchell v. Gile, 12 N.H. 390, 395–396 (1841); Harris v. Fowle (N.P. 1787), cited in Barbe v. Parker, 1 H. Bl. 287, 126 Eng. Rep. 168 (C.P. 1789); Shipman, Common-law Pleading 156, 253; but see 2 Chitty, Pleading 273–275 note (Springfield, 1859); John Wentworth, A Complete System of Pleading, 2:121–122, 191–192, 200, 220 (London, 1797). In any event, if the defendant's default had been occasioned by a rise in the price of rum, special assumpsit would be tactically preferable.
For whatever reason, special assumpsit was the form used here.

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

Editorial Note

This complex litigation, a landmark in the history of Martha's Vineyard, arose out of an unhappy family situation. The genealogical as well as the legal involutions of these cases being what they were, a sketch of the members of the great Mayhew clan of Martha's Vineyard mainly concerned, and of their relationships, is almost essential to an understanding of the legal issues.1 The chief figure on one side was Dr. Matthew Mayhew (1721–1805), a physician who was repeatedly a representative to the General Court and, from 1761, a Justice of the Peace at Chilmark, the village where all the action in the cases occurred. Allied with him was his wife's brother, Robert Allen (1732–1792), the coroner of the County of Dukes County.
A sister of Dr. Mayhew, Hannah, had married into the other and much more extensive family faction.2 Her husband was Zephaniah Mayhew (1715–1751), a son of Bethiah (Wadsworth) Mayhew. Among their children who were to play parts in the physical and legal scuffles of the 1760's were Lucinda (1739–1815), Wadsworth (1741–1829), and another Zephaniah (b. 1745). Bethiah, widow since 1733 of an elder Zephaniah, was the embattled “old lady” of the trial records.
The feud seems to have begun after the death of the younger Zephaniah, husband of Hannah, in 1751. Though the details are obscure, his widow appears to have handled her affairs and brought up her numerous children in a manner so irksome to Dr. Mayhew that, it was said by those who disliked him, he “sought all occasions, to ruin and destroy them.” With the backing of her husband's family, Hannah evidently succeeded fairly well, at least for a time, in fending off the effects of her brother's ill-will.
By 1762 the widowed Bethiah and three of her daughters—Jerusha (1717–1793), Bethiah the younger (b. 1723), and Mercy (1725–1825)—as well as the widowed Hannah and several of her children were { 88 } domiciled in the Chilmark household of the elder Bethiah's nephew, Zaccheus Mayhew (1723–1775). Zaccheus, the son of the late Colonel (Judge) Zaccheus Mayhew, was one of the most prominent members of a family always prominent in the Vineyard; in the documents he is never called by his Christian name but always deferentially Squire (“Esqr.”) Mayhew. Zaccheus was married to Rebecca, and had numerous children of his own, including, it seems, Lucy (sometimes confused with her cousin Lucinda, Hannah's daughter).
Strong-mindedness was evidently endemic among the Mayhew women, notably the elder Bethiah and her daughter Jerusha; but Dr. Mayhew eventually found, or thought he found, a vulnerable point in their defenses. In 1744 Mercy Mayhew had married Abel Chase, a hatter of Edgartown. After bearing Chase two sons, Mercy quarreled with him and went to live with her mother, taking her younger son Zeph, who was actually, however, articled to his grandmother until he reached the age of fourteen. Zeph turned fourteen in 1762 and his father wanted him back. The new chapters in the old feud began when Chase applied to Justice of the Peace Doctor Matthew Mayhew for legal help in forcing the women to give up the boy. What happened thereafter is told in the documents printed here.3
The case fast became “a quarrell of the most invidious, inveterate and irreconcileable nature.”4 Conflicting testimony abounded. Some of it appears in the minutes which follow; more may be found in a large collection of depositions and processes in the Superior Court Files.5 Adams remarked years later, “it was impossible for human Sagacity to discover on which Side Justice lay.”6 The years have not resolved the problem. We propose now merely to describe the procedural framework.
Legal matters commenced with Abel Chase's giving the warrant for Zeph's return to Deputy Sheriff Cornelius Bassett. When Bassett went for Zeph at Bethiah's house on 1 June 1762, the boy evaded him. It does not appear that Bassett made any return on the warrant; thus the warrant remained effective, a fact which was to become important later on. Bassett did however formally complain to Justice Matthew Mayhew that Jerusha Mayhew, her sister Mercy Chase, and Lucy Mayhew had rescued Zeph out of his hands. The Justice then issued a warrant, dated 1 June 1762, directed to “one of the Coroners” of Dukes County for the arrest of the three women.
Coroner Robert Allen took the writ. It is not clear whether he attempted to execute it immediately, although there is some evidence that he at least read the process to Jerusha on 1 June. On 9 October 1762 Allen brought { 89 } Jerusha physically before the Justice, who bound her over to the next Sessions at £5. Jerusha refusing to post the bail, Justice Mayhew ordered her committed and issued a mittimus.7
Now began Jerusha's lengthy attempt to foil Allen. On 11 October 1762 he went to take her but forbore when she pleaded illness and when Deacon Timothy Mayhew promised that she would go on the 15th or “the next fare day.”8 Allen returned on the 19th and the 20th, but still Jerusha would not go, even though on the 20th Allen himself agreed to be one of her bondsmen.9 On the 25th, Allen came to the house once more, this time with Thomas Lothrop as aid,10 and repeated his offer. Like almost everything else in the case, what happened next is uncertain. One of Jerusha's witnesses said that Allen manhandled Jerusha as she lay in bed and had threatened her with a whip; Lothrop said that Jerusha called Allen a liar and used him “with Uncivility,” whereupon Allen told her that if she were a man he would horsewhip her. Allen asked Wadsworth Mayhew to aid him, but Wadsworth, the Mayhews said, was deaf. According to Allen and Lothrop, Wadsworth rescued Jerusha out of Allen's hands.11
Now it was Allen's turn to swear out a complaint, this one at the Court of General Sessions of the Peace which was then sitting at Tisbury. A warrant for the arrest of Wadsworth Mayhew issued, dated 26 October 1762 and directed to the sheriff or his deputy.12 It is clear that Bassett took the warrant, but the evidence is confused as to whether or not he agreed to wait until the next day before executing it.13 At any rate, he summoned a number of men to aid him and set off at about 9:30 P.M. on the 26th for Bethiah's house, where Wadsworth was supposed to be. To cloud the picture further, there was evidence that he had the old warrant for Zeph in his pocket and intended to execute that as well.14
From the depositions of members of the Aid,15 it appears that Bassett's group stole silently toward the house and surrounded it. Bassett went to the front door, demanded entrance, heard a voice cry “Fire the gun,” and received a charge of buckshot in the legs. He and his men then broke down the door and entered the house. Inside, Bethiah Mayhew, although seated in a chair, began belaboring Bassett with a three-foot stave. Seizing it to protect himself, he pulled her onto the floor. More pulling and hauling { 90 } ensued before “the People then Grew Moderate.”16 Wadsworth, being securely tied, was then carried to jail and the Sessions.
Wadsworth, Bethiah Jr, and Bethiah Sr. were all indicted for criminal assault by the Grand Jury at the May 1763 sitting of the Superior Court at Barnstable,17 but only Wadsworth was ever tried. In May 1764 the jury brought in a verdict of guilty, which the court rejected.18
Meanwhile, the civil litigation multiplied.19 Jerusha sued Allen, Bassett sued Bethiah Sr, and Bethiah Sr. sued Bassett. Bethiah Jr. later was admitted as a party in all actions, while Lucinda Mayhew was admitted to the action against Allen, and Wadsworth was admitted to the actions against Bassett. The litigation wound its way from the Edgartown Inferior Court to the Barnstable Superior Court, where finally, in May 1764, all the cases were submitted to three referees: Gamaliel Bradford, Josiah Edson, and Ebenezer Spooner. In August 1764, the referees attempted to hear the cases, but Jerusha interposed a series of objections which succeeded in postponing the hearings for a year.20 Finally, on 29 August 1765, the hearings commenced.21 The minutes which follow as Documents I and II, by Adams and Robert Treat Paine respectively, memorialize the proceedings before the referees. Adams was of counsel for Bassett and Allen, and Paine for the Mayhews. It appears from the minutes that the cross actions between Bassett and the Mayhews were tried together.
After hearing the evidence and the arguments, the referees found against Allen in favor of Jerusha, £6; for Bethiah Jr, 20 shillings; and for Lucinda, 20 shillings. They also found against Bassett and awarded Bethiah Sr. £4; Wadsworth, £3; and Bethiah Jr, 20 shillings. In addition, Allen had to pay court and reference costs of £30 16s. 11d. Bassett's costs were £43 8s. 4d.22 The controversy remained alive until 1768, by which time Bethiah Sr. had died and Bethiah Jr. as her executor prayed execution against Bassett for the £4 damages and costs. Adams interposed a multipart defense, of which the following sentence is sufficiently illustrative to stand as a commentary on the entire case: “And the said Cornelius Bassett comes and defends, &c. and Saith that this Writ is bad and ought to abate for that 1. It is in said Writ alledged that said Bethiah Mayhew before the Justices of the Superior Court of Judicature, &c. holden at Barnstable within said County of Barnstable and for the Countys of Barnstable and Dukes County, on the second Wednesday of May in the Sixth Year of his Majesty's Reign and by the Consideration of said Justices recovered the { 91 } Judgment mentioned in said writ which by Law ought not to have been alleged if the said judgment should have been alleged to have been recovered on the Wednesday preceeding the third Tuesday in May in said year.”23
Apparently Adams never pressed the technicality, for the final Record entry is: “The Defendant makes default”;24 that is, the defendant allowed the plaintiff to prevail by default.
1. All vital data in this sketch are drawn from the genealogies of the Mayhew and related families in Charles E. Banks, The History of Martha's Vineyard, vol. 3 (Edgartown, Mass., 1925).
2. Banks does not show Hannah's relationship to Matthew, but it is stated in Hovey's narrative of the background of Jerusha Mayhew's case against Robert Allen, in Doc. I.
3. Other Mayhews who had lesser roles in what followed were two brothers, “Deacon” Timothy and Simon Mayhew, who were distant cousins of Matthew, Zaccheus, and the elder Bethiah's late husband, Zephaniah.
5. SF 83471, 85247, 86474, 144133, 144145, 144187, 144233.
7. SF 144187.
8. Deposition of Rebeckah Mayhew, SF 144187.
9. Deposition of Rebeckah Mayhew, SF 144187.
10. Deposition of Thomas Lothrop, SF 144187.
11. Depositions of Rebeckah Mayhew and Thomas Lothrop, SF 144187.
12. SF 83471. The warrant is printed in Quincy, Reports 93 note.
13. Depositions of Ebenezer Smith and John Cottle, SF 85247.
14. Deposition of William Stewart, SF 85247.
15. Depositions of Eliakim Norton, Thomas Daggett, Jonathan Cathcart, Silvanus Norton, Jeremiah Manter, and Benjamin Coffin, SF 83471, 85247, and 144133. The Aid was the group of citizens enlisted by an officer to assist him in the performance of a particular task.
16. Deposition of Eliakim Norton, SF 144133.
17. SF 144145.
18. See note 4468 below.
19. Min. Bk. 72, SCJ Barnstable, May 1763, C–3, C–9; id., May 1764, N–3, N–4; Min. Bk. 82, SCJ Barnstable, May 1766, C–3, C–4; Rec. 1766, fols. 28–29; Min. Bk. 89, SCJ Barnstable, May 1768, N–4, N–5; Rec. 1768, fols. 177–178.
20. SF 144187. Part of the matter was tried at the May 1764 sitting, according to minutes in the Paine Law Notes which are not printed here. It does not appear that JA participated at this stage.
21. SF 86474.
22. Min. Bk. 82, SCJ Barnstable, May 1766, C–3, C–4.
23. SF 144233.
24. Rec. 1767–1768, fols. 177–178; Min. Bk. 79, SCJ Barnstable, May 1768, N–5.

Docno: ADMS-05-01-02-0003-0001-0002

Author: Adams, John
Date: 1765-08

Adams' Minutes of the Referees' Hearing1

Chilmark, Martha's Vineyard, August 1765
Seal. Directed to a proper Officer. The Cause. General Warrant. Martha's Vineyard
Hovey. Justifies by Warrant. Generality. Turning Point, legality of Warrant. Void in itself. Broke open in the dead of Night.
Damages. Thrown down on the Hearth. Stripd of her Cloathing. Not yet got rid of her Wounds as she saith. Fright. Weakness consequent. Bethiah and Wadsworth—Weakly. She never had got over it she says. Wadsworth.
Abel Chase of Nantucket married Mercy Mayhew, Daughter of Bethiah Mayhew. They disagreed and separated 15 or 20 Years ago. They had a young male Child at the Time of separation, which Chase put out by Indentures to the Grandmother Bethiah Mayhew, from 5 to 14 Years of Age. When the Boy come to be 14, his Father wanted him, and complained to Dr. Mayhew,2 that his son refused to obey him, and had run away from him. Dr. Mayhew made out a Warrant for the Boy, which Bassett was about to serve about to take the Boy, when the Women Bethiah, Jerusha and others, came out and assaulted Basset and held him, till the Boy went out of Bassetts Way. Basset { 92 } complains of the Opposition of the Women to Dr. Mayhew. Dr. Mayhew gave a Warrant to the Coroner,3 upon the Comp[lain]t of Deputy Sheriff, vs. the Women &c., for Resisting him in the Execution of his office. 1st fault directed to Coroner,4 2d. no Seal. 3d. general. Allen the Coroner took that Warrant, and went and read it to them, and told em they must go, but they said theyd die first. Another Time, told Jerusha she must go, and she said she would go home first and come, and did. The Justice Dr. Mayhew sentencd to recognise5 or go to Goal. She refused to find Bond so a Mittimus was made out, directed only to the Goaler.6 But Allen did not committ her, took her Word for her Appearance on Monday, but then she pretended to be sick from Time to time and pretended to be at one Time set forth in her Writ, when Allen only took hold of her Hand.
At this Time two young Men came up and held her and kept off Allen. Wadsworth Mayhew was the most active. Then Allen goes and complains to the Sessions, that he was opposed and resisted, by Wadsworth Mayhew. Court orders a Warrant7 to bring Wadsworth vs. all opposition, before them and to enter any House, where the officers should suspect him to be. This directed to the Sherriff. Bassett goes with Aid8 to the House, and demands Entrance &c. A Gun is fired which wounds him in the foot and Leg. He breaks the House and drags Wadsworth away to the Court.9
Jerusha Mayhew vs. Robert Allen.
3 Imprisonments and an assault and Battery. Octr. 1763. Verdict vs. her.10 Sup[erio]r C[our]t Papers in Justification rejected.11
{ 93 }
Hovey. Not for bearing hand vs. civil Authority.
Zeph. Mayhew married the sister of Dr. Mayhew. Zeph. died. His Wife administerd and was Guardian of the Children. Widow taken in by J. Webb and Company. J. Webb became Master of the Children and Property. These orphan Children, thrown upon this family. Adonijah pursues his right, his Aunt Jerusha assists him. The Dr. disliked it, and thence sought all occasions, to ruin and destroy them. Chase's marriage, separation, oldest son with the father, youngest with this family.
Dr. Mayhew issues out a Writ, intended for a Warrant for this Boy, delivered to Bassett, who attempted to execute it, but the lightfooted Boy made his Escape. Jerusha placed herself between Bassett and the Boy. Basset returns that the Boy was rescued12 by Jerusha. Now the Coroner in Tow. Sherriff and Coroner shall play into one anothers Hands. Not a Warrant of them will justify an Officer. Jerusha apprehended, carried before the Dr. and sentenced that she was sufficiently guilty of an offence and must give Bail, which she would not do. Dr. makes out a Mittimus, illegal one. How to be carried could not tell. Allen seizes Jerusha to carry her to Goal. 2 June as well as 1st.13 Then slept till Octr. 25th.14 Octr. seizes her again by same Warrant at Esqr. Mayhews, seizes her in her Bed, and would have her out, commanding assistance. Wadsworth seeing his Aunt ill used, put up the Cloths on his Aunts Breast. Allen cryd, thats enough Wadsworth has rescued you out of my Hands. Allen makes the most vile and devilish Return.15 God knows not a Word of Truth in it. The { 94 } Court then makes out a Warrant to the Sheriff, to take Wadsworth vs. all opposition. Basset comes, and makes the Disturbances of the night, and goes and complains again vs. the whole Family, a new Warrant16 is given to Allen, who comes and seizes and binds &c. them.
Jerushas demands vs. Allen. Assault and Imprisonment, 1st. June. 9th. Octr. 25th. Octr. Besides these she demands Damages for 2d time and for breaking her House on the 26th. Octr. and for imprisoning her on 11th. Octr. and 20th.
Deposition of Rebecca Mayhew Wife of Esqr. Allen offered to be her Bail.
Deposition Mary Hunt. Heard Jerusha tell Allen he lyed.
Jane McGee. 25th. at Esqr. Mayhews I went, Jerusha told Allen he lyed. Then he said he'd horse whip her if well. I did not hear her complain of his griping her Hand. I took it, Wadsworth laid his Arm over to hold her and prevent Allen from taking her away. Had hold of her Hand not long.
Zeph. Mayhew. Bro[the]r to Wadsworth. He pull'd her up and about. I thought to hurt her not to take her.
Esqr. Smith. Interlocutory [ . . . ].
Simon Mayhew. Mittimus. We gave our Words for Jerusha at Dr. Mayhews. I did not see Allen touch her nor hear him make her his Prisonment [i.e. Prisoner?].
D[eaco]n Mayhew. Desird to bring her behind him to Dr. Mayhews.
Mrs. Chase. Hall'd out a Paper—at the Door—but laid Hands on no one.
Uriah Tilton. At Dr. Mayhews. She refused to find Bonds. Mittimus written. She unwilling to go that night. He unwilling to carry her. Allen [ . . . ] their Words till Monday. D[eaco]n Mayhew then present about making up, that she might stay longer.
{ 95 }
John Bassett. Beg[inning of] June. Allen wanted me to go as aid. Esqr. Mayhew would not go. We could not catch them.
Stewart, Wm. Beg[inning of] June. Dr. Mayhew advised me to go as a Friend. Esqr. Mayhew in a great Passion—'tho commanded would not go. We went to the House but could not persuade them to come out, nor could we catch them.
Esqr. Mayhew. Told Allen that it would be little less than Murder to carry her to Goal. I asked Allen if I should take his Prisoner, and he consented.17
Jeira Willis. Nothing.
Paine. Ashes raked over these unhappy Coals. Whole Bone picked and the Hatched [Hatchet] for ever buried. Boadicea the deliverer of Britain from the Invasion of the Hunts [Huns?]. Rod however broken, this Warrant however illegal, hung like a bloody Banner, over this family. Poor helpless Women—Walked between his Legs as a ship between those of the Colossus. Touching not of the Essence of Imprisonment.18 Surrounded the House, lockt up Doors, Windows, stop'd up Chimney, till starvd to death.
Vulgar Custom refuted by a vulgar Proverb. A bad Custom better broke than kept.
Jack ancient or pendant. Stings 1000 times deeper—gives a greater Weight to the Bullet. Going down stream, tide and half Tide. Noahs Dove—wise, Dove—found nowhere after flying about, to set his foot.19 Many a Case, has sunk like a Millstone to the Bottom of the Ocean, when founded on an illegal Warrant.
Cornelius Bassett vs. Mayhews.
Jeremiah Manter. Aid. Bassett stooped down to see his Wound, and the old Lady, with a stick smites Bassett 3 or 4 times over the Head. Then He took hold of the stick and in pulling it out of her Hand, she fell down, no Hurt done her that I saw. About ½ after 9. Robert Allen came to call me.
Meletiah Davis. Aid. A Deputy Sherriff. Basset came to me and desired I would go and serve the Warrant. The Clerk carried it to the high sherriff, who offerd it to me, I declind. Basset offerd me a Dollar { 96 } to go. Esqr. Mayhew advised Basset not to go that Night. Basset said he would not, if he would promise to bring him out in the Morn.
The blood running out of his stocking. The old Woman laid him over the shoulders. He caught the Clubb, and pull'd. She held so fast that the Coll.20 pull'd her out of her Chair. We were afraid of Murder, and so bound the 2 young fellows. I heard no Noise at the Door but Voices till after the Gun. She fetched Shreve21 a Blow in the face and gave him a black Eye. The old Woman was laid on the bed. Hardly time for Wadsworth to have fired the Gun.
Eliakim Norton. Aid. About Chase up Chamber and danger of his killing somebody. Gun loaded deeply. He being a friend hoped to prevent difficulty. Heard it said Basset was under a sort of a Difficulty or Engagement to Esqr. Mayhew. I thought not time for Wadsworth to fire the Gun.
Thos. Dagget. Aid. Bethiah said I shall go into a fit. He let her go. She struck him.
Silvanus Norton. Aid. Heard in the House a Womans Voice damn you all, what do you do here. Mrs. Chase wishd to God she had been there, she would have prevented all this.
Ebenezer Allen. 12 Men Aid. Bassett said he had another Writ in his Pocket. Stand off. Two Bethiahs by Voice. It appears to me it was 11 O Clock. Davis and Dagget took Bethiah from out of her Mothers Arms. Old Woman prayd. God not here, more like the devil. Robert Allen said it hurt him to take the old Lady, and agreed to omit it. Basset ordered to search the Chamber, because he did not know what Mischief might be done. Utensils brought to light a Candle. Every one went in and out as they pleasd. No Rigor used.
Robert Hammet. I knew nothing of their Coming to this House till it was over.
Benja. Coffin. Basset told Esqr. Mayhew he would not go if he'd give his Word. But Esqr. would not. But he said he believd he should not. Women cryd begone, or theyd break his Head. Many Threatening Speeches, and one cryd fire the Gun. I thought I heard somebody in the Chamber. A Woman's Voice in this Room, I thought. I take it to be Bethiah Mayhew Ju[nio]rs. The old Lady struck at me. Bethiah Mayhew seemd to look as if she was looking for a Weapon. Some of Us took hold of her Hands and raised her up. I said I thought it would be best to bind her, but nobody did. She said if she died, she hoped { 97 } somebody would prosecute for her. Basset said he did not know but he might take the Boy if he had opportunity. She talkd more than all the rest till Allen came. She laughd heartily and made the Company laugh.
Nathl. Hancock Esqr. The whole Island knows of their Threatnings, keeping Guns, &c. Jerusha reflected on the whole Court22 as guilty of Intemperance.
Ebenr. Smith Esqr. The People were almost universally for his going.23 I said I did not know but it was best.
Dr. Mayhew Esqr. Bethiah said that if officers came either from Me or the Authority they would resist them to the last degree.
Mary Mott, and Jer. Manter. Urged them to put in Things that they knew not.24
Jona. Foster. The old Women said We keep a Gun, to kill the Man that comes for the Boy and a Clubb too.
Samuel Bradford. The Dr.25 Basset had a bad Wound such as I should not chuse to have for any Money. I would not have such a Legg for £5000. 5 shot in one Legg and 2 in the other. The shot passing thro the Door, were bruisd, and inflamed. The Legg is not well yet. It swells with Exercise and never will be well.
Dr. Smith. 5 shot in one Legg and 2 in tother. The Wound was bad. One or two shots lodged against the Bone.
Hovey. Incidents. Doors, Windows, Avenues guarded. Jumbled against the door.26 Who the Persons were that fired the Gun, the Witnesses know not. Wadsworth fire the Gun, fire the Gun. 1st. convince you, that Wadsworth Mayhew could not be the Person, that fired this Gun. Norton, Davis and Manter. At the back door. Broken Way in the Entry.
Witnesses. Zephaniah Mayhew. Large Noise as if somebody pulling { 98 } down the broad side of the House. Heard Grandmother and Aunts crying Murder. Bound my Hands quite tort27 so they hurt me a great while. Basset pulled Grand[mother] out of her Chair. He turnd from her and curs'd and swore, and somebody said God ant here. Basset ordered somebody to go up Chamber and look for Zeph Chase. I waked Wadsworth up and he and I went to the back door. I heard no Gun, nor [fired?].
Lucinda [Mayhew].28 I went to Wadsworth in Bed. I saw Dagget have Jerusha by the Hands.
Zeph. Chase. Heard swearing too. Never knew there was a Gun shot, that night.
Mercy Chase. My Child, &c. Family in great Distress, Terror and Fright. Mother complained of Jams and Bruises. Sister Bethiah compland that she was mashed, and I saw burns and black spots.
Esqr. Mayhew. Manter forward. Bassetts Word. Old Lady said what have I done to be beat and abused so. Basset said he could not remember whether he mentioned Wadsworth Mayhews name.
Esqr. Hancock said if any Body should break his House he would kill them as soon as a Rabbit.29
Mary Hunt. In her Apprehension Bethiah Mayhew had been much hurt by the Persons that broke in.
D[eaco]n Mayhew.
Simon Mayhew.
John Cottle. Basset told me that one Reason of his going that night was to take Chase.
Mary Mcgee. Dr. Mayhew said the best way to get the Boy was to pull the House down. Dr. Mayhew dont remember.
Ruth Mayhew. See Deposition.30 Bruises, &c.
John Basset's Opinion.
Timothy Mayhew Jnr. Deposition. Heard Basset say he would have the Boy dead or alive,31 and heard Discourse with James Athearn, about pulling the side of the House down.32
{ 99 }
Sarah Hatch. Deposition.33 Discourse with Athern.
Elisha West. Saw the old Womens Bruises. Abel Chase told me he had employd them that he expected would get the Boy.
Jeira Willis. I took it Basset was determind not to come that Night.
Ezra Tilton Jr. Manter told me, that Robert Allen called him up, and he was ready to get up.
Jer. Tilton.
Hovey. Wadsworth could not be the Person. Witnesses perjured. Lucinda, and Zeph. Wadsworth could not get out and in again without waking Zeph.
As little Probability that the others did it as Wadsworth. Bethiah was found in such a Posture that she could not do it. Lucinda heard no Gun.
Bassetts Authority. I hold his Warrant. Vid. 2 Shaw. 382, bottom,34 will not justify. General Warrant. Law gives no such Power to Justice or sessions. 1. Shaw. 76.35 Browlow Bordmans.36 Law of Arrests. C[enter?] of p. 235,37 vid. §8;38 p. 186.39 No Necessity. Late in the Night. Agreement with Esqr. Mr. Bordmans House Damages. Confined till near April. Leg swelld at Barnstable.
Paine. Awful Night, the Aera of Liberty. Pretended Complaint of { 100 } Allen piping Hot. Sessions. Overruled in Sessions, 'tho objected to. Mrs. Jerushas Resignation and Obedience. Crusade. Veterans of death Regt.40 No Counsel. No Pleadings. Arrests 173.41 Sir Wm. Pepperells House. No remedy. We dont hear of such Procedings in Boston, nor any where else.42 Officer must demand a peaceable Entry. Night Time not the proper Time. Something else in his Mind. Zeph Chase. Clashing of Evidence. The mean to be taken.43 Doubtful whether Either of them fired the Gun. Sup[erio]r C[our]t would not receive the Verdict vs. Wadsworth.44 Family Witnesses, when none others. Something in human Nature, abandond [ . . . ]. Not Partialities &c. Characters of this family. Prejudices of Witnesses on the other side. Cobb whose wife had prompted on this unruly Proceeding.45 Threats before Hand. Faithful Memory of an Enemy. Family obnoxious to the Government, weigh nothing. [Haulescks?] Law. Widow is wounded in the House of her fri[en]ds. The Report Defamation of keeping a Gun. Cape fly a way. Resisting the sham appearance of Authority is { 101 } laudable. Fire the Gun. No Evidence vs. Bethiah Se[nio]r. Not a Word of the old Woman. Lucindas Cry to Zeph Chase. Damages. Careless of his Legg. Cases at Plymouth.46 Bulletts in Leggs, &c. Damage without an Injury.
1. In JA's hand. Adams Papers, Microfilms, Reel No. 185. The minutes are in the form of a paper booklet, with “Martha's Vineyard” in large careful letters on the front cover. The matter beginning “Abel Chase” commences on the second leaf, and the notes set out here between the heading and that matter are written in a hasty hand on the front cover, some of the writing being upside down with respect to the title. These first notes pertain to Bassett v. Mayhew; it is possible that they are not courtroom jottings at all, but at least in part represent a memorandum of a conversation between JA and James Hovey, who was one of the opposing counsel.
2. Dr. Matthew Mayhew was a Justice of the Peace, commissioned 16 Oct. 1761. Whitmore, Mass. Civil List 149.
3. Robert Allen and Thomas Daggett had been commissioned Coroners of the County of Dukes County 16 Oct. 1761. Whitmore, Mass. Civil List 160.
4. The Mayhew interests argued throughout the litigation that the warrant should have been directed to the Sheriff, not the Coroner, and that any actions which Coroner Allen took in pursuance of the warrant were therefore illegal. A statute of the Province provided for service by the Coroner of writs running against the Sheriff and empowered the Coroner to return talesmen to fill up the jury in any case in which a sheriff was concerned or related to the parties. Act of 10 June 1700, c. 3, §10, 1 A&R 429.
5. That is, to post bond for appearance at the next Inferior Court.
6. A mittimus was an order of commitment. The Mayhews argued that the mittimus, an attested copy of which is in SF 144187, was illegal, because it merely commanded the jailkeeper to accept Jerusha, but did not order an officer to take and deliver her.
7. See SF 83471 and Quincy, Reports 93 note.
8. See note 15 above.
9. The position and handwriting of the preceding two paragraphs in the MS indicate that they constituted JA's statement of the whole litigation, prepared well in advance of the hearing.
10. Presumably in the Dukes County Inferior Court. No record of the case has been found. The Barnstable records were destroyed by fire in 1827. Richard L. Bowen, Massachusetts Records 20 (Rehoboth, Mass., 1957).
11. It is not clear whether JA refers to Superior Court papers which were rejected, either in the Inferior Court or before the referees, or whether it was the Superior Court that rejected other papers. Nor is it certain just which papers were intended. Possibly the reference is to Rex v. Gay, Quincy, Reports 91 (SCJ Suffolk, Aug. 1763), which held, three judges to two, that in a prosecution for assaulting an officer in the execution of his office, the warrant under which the officer was acting is not admissible as evidence unless it is legal. (Samuel M. Quincy cites Bassett v. Mayhew as contrary authority. Id. at 93 note.)
12. The elements of a rescue include the officer's lawful custody of the prisoner and the forcible removal of the prisoner from that custody. Failure to assist an officer or even impeding him in his efforts are crimes of a different nature. Hovey's point here is that Bassett never had custody of Zephaniah, and, therefore, his return, or account, of a rescue was wrong.
13. There is no indication that Allen seized Jerusha on either 1 or 2 June; it was Bassett who attempted the seizure on 1 June.
14. The testimony of one of the Mayhews' own witnesses was that Allen made several peaceable attempts to take Jerusha prior to 25 October. Deposition of Rebeckah Mayhew, SF 144187.
15. The warrant and return have not been found. In SF 83471, 144138, and 144145 are copies of the writ in Allen v. Mayhew which indicates Allen's complaint that while in the execution of his office he attempted to carry Jerusha to jail in Edgartown and was “Opposed in his said Office by one Wadsworth Mayhew of said Chilmark by Violently Seizing the body of the said Jerusha and holding her.” The mittimus, SF 144187, has only one return: Allen took Jerusha and brought her before Justice Mayhew on 9 Oct. 1762.
16. This warrant, dated 27 Oct. 1762, SF 83471, brought before the Court of General Sessions of the Peace at Tisbury Bethiah Mayhew Jr, Lucinda Mayhew, Zephaniah Mayhew, and Jerusha Mayhew Jr. (Zephaniah's sister) to answer for the disturbance of the night before; the file does not indicate what action was taken.
17. Apparently Squire Mayhew himself agreed to produce Jerusha.
18. Paine seems to be arguing that laying on of hands is not an element of imprisonment, an argument that could, in the instant case, cut both ways. See note 3612 above.
19. The sense of Paine's metaphors eludes us, as the shape of his phrases seems to have eluded JA.
20. Bassett was evidently a colonel or lieutenant colonel of militia; he is occasionally referred to by title in these minutes and in the deposition.
21. Possibly a reference to the Sheriff, Bassett, or perhaps to one of the aid.
22. The Inferior Court.
23. That is, for Bassett's going to take Wadsworth on the night of 26 October.
24. “... being present where the said Jerusha was taking evidence [I] have heard said Jerusha mention and urge things to the Deponents to give in which they refused as not knowing the same.” Deposition of Mary Mott, SF 85247. No such language appears in either of Manter's depositions, SF 83471, 144133.
25. Samuel Bradford was a physician. Charles E. Banks, The History of Martha's Vineyard, 3:44 (Edgartown, Mass., 1925). It is worth noting that so-called “Golden Rule” testimony (“I would not have such a Legg for £5000”) was apparently admissible. See also King v. Stewart, No. 2, text at notes 29, 3066, 67.
26. “Basset came from the window to the door and I heard somebody step from the bed towards the door or fireplace and just as Basset he got to the door and grumbled at it, the gun was fired through the door.” Deposition of Jeremiah Manter, SF 144133.
27. Thus in MS, for “taut” or “tight”?
28. This is presumably the “Lucy Mayhew” who was a party plaintiff only in the action against Allen. She was therefore competent to testify in Mayhew v. Bassett.
29. The Paine Law Notes (Doc. II) indicate clearly that this is Mayhew's report of what Hancock said. It seems to be hearsay, but neither Paine nor JA indicates that it was excluded.
30. SF 85247. Ruth Mayhew visited the Mayhews the day after the fracas and deponed in their behalf concerning the disordered state of the house and the poor physical condition of Bethiah Sr.
31. SF 85247. Timothy Mayhew deponed in Bethiah's behalf to overhearing Bassett state his intention on 6 June 1762.
32. SF 85247. Timothy also deponed that later in June he had overheard Bassett tell James Athearn he would have to “take the door of its hinges and pull down one side of the house.” Athearn was clerk of the Dukes County Inferior Court. His name appears in many of the file papers in these cases.
33. SF 85247. Sarah Hatch deponed in Bethiah's behalf to Bassett's telling Athearn in June or July 1762 that “he would not go to said house again without a special writ and orders to breake open the house and men enough to gard him.”
34. The editors have not located the precise edition of Joseph Shaw, The Practical Justice of Peace involved here. However, 2 id. 348 (London, 6th edn., 1756) bears on this point.
35. See note 5834 above. 1 Shaw, Justice of Peace 85 notes that “a Justice of the Peace his Warrant will not justify a Constable in breaking into a House to apprehend any Person for a less Crime than Felony or Misprision of Felony.”
36. The citation is unclear and so, at this point, is JA's handwriting. See Woody's Case, 1 Brownl. & Golds, 204, 205, 123 Eng. Rep. 756 (C.P. 1606): “A justice of peace cannot command his servant to arrest one without a warrant in writing in his absence.”
37. The Law of Arrests 235 (London, 1742): “No one can justify the breaking open another's door to make an arrest, unless he first signify to those in the house the cause of his coming, and request them to give him admittance; for the law never allows such extremities but in the cases of necessity.”
38. Law of Arrests 236 (§8): “[Breaking open the door is justified] where one known to have committed a treason or felony, or to have given another a dangerous wound, is pursued either with or without a warrant, by a constable or private person; but not where one lies under a probable suspicion only.”
39. Law of Arrests 186: “Any constable or private person, to whom any justice of the peace directs his warrant to arrest a particular person for felony, or any other misdemeanor, within the justice's jurisdiction, may lawfully execute it, whether the person mentioned in such warrant be in truth guilty or not.”
40. The allusion is unclear.
41. Law of Arrests 173: A single justice may issue a warrant for an offence “cognizable only by a Session of two or more Justices.” JA may have miscopied Paine's citation.
42. “[W]hile We were at Falmouth waiting to be ferried over to the Island the News arrived from Boston of the Riots on the twenty fifth of August [1765] in which Lt. Governor Hutchinson's House was so much injured.” 3 JA, Diary and Autobiography285.
43. That is, the truth lies between the conflicting versions.
44. Wadsworth Mayhew was indicted at the May 1763 Barnstable Superior Court, and tried at the May 1764 sitting. The Minute Book entry does not state the verdict. “The Jury bro't in a Verdict which the Court think is contrary to the Evidence. They therefore reject the same and the Indictment is continued to the next term for trial.” Min. Bk. 72. It does not appear that Wadsworth was ever retried, however. The Paine Law Notes contain the following minute of his May 1764 trial:
Barnstable Sup[erio]r C[our]t May 1764
Dom. Rex vs. Wadsworth Mayhew
Benja. Coffin. Took it to be the Voice of B[ethiah] junr. did not disting[uish] his telling his bus[iness]: took hold of the Door before.
Norton. Told his bus[iness] full.
Manter. Bethiah junr. call'd, Basset gave orders to open an inner Door.
Davis. Saw Wadsworth immediately after firing Gun. I was at back, not Time eno[ugh].
Esqr. Mayhew.
Lucy. I and Wadsworth opend the Door. Thought of going for a Warrant.
Zepha[niah]. Wadsworth was Sleep, waked scared, went to back door, not to escape.
Mem[orandum]. Wadsworth was cleared at the Inf[erio]r Court for Damages.
Mem[orandum]. He told his bus[iness] but they did not hear it.
45. The reading is clear, although the meaning is not. This is true of many of the phrases which follow.
46. Presumably other cases of personal injury decided during the Plymouth term of the Superior Court. But it could also refer to Inferior Court cases determined there.

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

Author: Paine, Robert Treat
Date: 1765-08

Paine's Minutes of the Referees' Hearing1

Chilmark, Martha's Vineyard, August 1765
Dukes County Augt. 1765
Cor[am] Referrees
1762. June 1. C. Basset complains of Jerus[ha] Beth[i]a[h] junr. Lucinda Mahew and Mercy Chase and a Warrant issues without Seal and directed to Coroner and General who on said day serves it on all three and lets them go.
Oct. 9. Coroner Allen serves it again on Jerusha and takes her before M. Mahew who binds her to Court and makes a Mittimus directed only to the Goaler.
Oct. 25. Coroner Allen takes Jerusha being sick a bed by Words Esqrs. said Mittimus and Wadsworth hinders.
26. On this Allen complains to Sessions then sitting of Wadsworth and the Warrant goes on which the home was broke.
27. C Basset complains to M M[ayhew] and al. and he grants a Warrant vs. Bethiah, Bethiah junr., Lucinda, Jerusha junr. and Zephaniah [ . . . ] for the trespass at the breaking: directed to and serv'd by Coroner.
Jerusha brings Act[io]n vs. Allen for serv[in]g said Warrant on June 1 and Octr. 9th and the Mittimus, and Bethiah junr. and Lucinda are admitted Parties and complain of the service of the three Warrants on June 1st. and also of Allen abusing them in the Night.
Bethiah brings Action vs. Basset for abusing her that Night and Bethiah junr. and Wadsworth are made Partys complain of Bassets abusing them on the Nights and also say Basset's judg[men]t vs. them for the Trespass is wrong or too much.
{ 102 }
Jerusha Mahew et al. vs. Robt. Allen
Rebbecca Mahew. Deposition 11th. Octr. 1762. Came again 20th. Came again 25th. PM came again.
Mary Hunt. Deposition same.
Jane Magee. 25th. Jer. gave defendant the lye about a Death he said if she was well he would horsewhip her tho she was a Woman. Same as Reb[ecca] and Marys.
Zeph. Mahew. Oct. 25. Same. June 1st.
Esqr. Smith. Interlocutory Recognizance.
Simon Mahew. 9th. Octr. mittimus given to Allen. He procured two men to pass word for his forth coming.
Deacon Mahew. The taking on the warrant.
Mrs. Chase. June 1 the taking by the Warrant, on the Nights.
Uriah Tilton. The imprisonment before Justice M Mahew and [ . . . ]mittimus and his <being> giving [word?] for her forthcoming.
John Basset. Went after him in June and could not catch them.
Wm. Steward. Same.
Esqr. Z. Mahew. She was too sick to be carried on the Mittimus. I ask'd Allen if I might take his Prisoner and he gave Liberty.
Law Arrests. P. 189 §22. Constable liable in executing General Warrant.2
184 §8 Cons[table] can suffer to go at large and retake.3
172 §8. Jus[tice of the] P[eace] can't grant General Warrant.4
71 §9 Not Murder to slay an officer executing bad Warrant.5
{ 103 }
13 §11. Coroner not officer to serve Warrants.6
2 Shaw. 382 §3: action lyes vs. person who executes a Warrant who is not legal <Warrant> officer.7
1 Shaw. 262 § officer cant execute general Warrant.8
The Warrant vs. Jerusha et al.
The Mittimus vs. Jerusha.
The Province Law of Coroner. @ Plaintiff and Compl[ainan]t the same. And it doth not appear on the warrant the Sheriff was Compl[ainan]t.9
Distroying these Warrants for want of form will open a Door for Actions, As the Sup[erio]r C[our]t has condemned them.10
Thos. Lothrop. Deposition.
There was no touching therefore no Arrest. @ there may be Imprisonment without touching.
How Dr. Mahew could be interested. @ resentment.
Cornelius Basset vs. Wadsworth, Bethiah and Bethiah junr. Mahew.
Last Judg[men]t.
Warrant to take Wadsworth.
Jona. Cathcart. Deposition.
Jer. Manter. Bethiah junr. cry'd Wad. fire the Gun by her Voice, Lucinda, cry'd Zeph. dont fire.
Mela. Davis. I was at Cobb's. Basset offered me a Dollar to go as { 104 } officer. Ill press you as assistance. Esqr. Mahew offered to have him forth Coming. 9 oClock when we came from Cobb's; not time eno[ugh].
Elias Norton. Deposition. Basset seemed to say he was obliged to go that Night. Not time eno[ugh].
Thos. Dogget. Some body in house said fire the Gun; told him [try].
Sylv. Norton. Forced the door with billets of Wood. Saw the Gun ly on the Stairs.
Ebenr. Allen. Came from Cobbs about 9 oClock, eat supper at Cathcarts. I think it was 11 oClock when we got to the house.
Robt. Hammet.
Benja. Coffin. Basset promised Esqr. Mahew if he would [have] Wadsworth that he believed he would not go. Bethiah cry'd Wadsworth fire Gun. Near 10 at Cathcarts.
Esqr. Hancock. The reason of the Court's granting such a Warrant and del[ivere]d about 7 oClock. I understood next morning that Basset had engaged me to go that night and [ . . . ] his preachments.
Esqr. Smith. I did not like the warrant, it was imagined they were determined to bear down the Authority of the Island.
Dr. Mahew. Bethiah junr. told me if any officers came with warrant they would resist unto the last degree, speaking of Zeph. Chase.
Esqr. Athearn. By the talk they had I concluded they would not go that night.
Nathan Mahew. Deposition. Jerusha said they had a Gun hidden and would shoot April 2 1762.
Mary Mott. Deposition.
Seth Dogget. Deposition. Jerusha shreaking that she was sory she must be the Death of some of their neighbours.
W m. Stewart. Deposition about F[ . . . ] Being threatning.
<Jona. Cathcart. Deposition.>
Jona. Forster. I ask'd to come in 2 or 3 years ago Jerusha came to the Door and bid me come in. Old Woman said we keep a Gun to shoot any officer that comes for the Boy and also a Club.
Saml. Bradford. Col. Basset had bad Legg.
Dr. Smith. Bad for a flesh Wound.
Zeph. Mahew. Wadsworth was asleep. I waked him, I heard no report of Gun.
{ 105 }
Lucinda Mahew. Wadsworth and Zeph in bed, I waked em and they went with me to the back Door.
Zeph Chase. I was up Chamber and made my Escape and did not know if a Gun fired till next day.
Mercy Chase.
Esqr. Mahew. Warrant <Bassett> I proposed to Basset not to go till morning, Jer. Manter pushed on the thing. Basset then said if you'll undertake to acquaint the Family, I'll let it alone till morning. As I pass'd Defendants house I saw no light, I told Jerusha there was a Warrant on Wadsworth. She said We will Not stop him Against lawful Authority. Allen came with his Warrant. Esqr. Hancock said if any body should Attempt to break his house in the Night he would kill 'em as quick as a Rabbit.
Mary Hunt. Deposition as to the Damage done Bethiah junr.
Deacon Mahew. Bethiah junr. much hurt.
Simon Mayhew. Bethiah junr. much hurt.
John Cottle. Deposition of Basset's promise and intent to take Chase's Boy.
Mary Magee. Deposition of Dr. Mahews Speech about pulling down the house to take Chase Boy.
Ruth Mahew. Deposition. Bethiah junr. much hurt.
John Basset. Talk with Basset.
Timo. Mayhew junr. Deposition about Bassets Zeal in taking Zeph. Chase and said he must take door off hinges.
Sarah Hatch. Deposition of Basset threats to take the Boy Very Strong.
Elisha West. Deposition of Bethiah junr's Bruizes; of Zeph Chase carrying the Gun, Abel Chase said he had employ'd them that would get the Boy.
Jeira Willis. I took it for granted Basset was determined not to come that night, Cobb's Wife advised Basset to go and others back'd him, Basset insulted Wadsworth, late bed time when they [ . . . ].
Ebenzr. Smith. Deposition. Bassets promise not to go that Night.
Ezra Tilton. Jer. Manter told me next day how he was desirous to go.
Uriah Tilton.
Objections to Warrant
To search all suspected houses.
Not for sufficient Cause to break house.
If Warrant good, officer could not break in the night.
1. Paine Law Notes. The material down to the minutes of Mayhew v. Allen is, from the state of the MS, Paine's pre-trial statement of the litigation.
2. Law of Arrests 189, §22: “And if one Justice of the Peace direct his Warrant to a Constable, to bring the Person before him, to answer all such Matters as shall be objected against him by another, and does not set forth the special Matter in the Warrant, the Warrant is unlawful, because it does not give the Offender Time and Opportunity to find Sureties; and the Constable, if he executes it, is liable to an Action of false Imprisonment.”
3. Law of Arrests 184, §8: “And if a Constable arrests an Offender by Virtue of a Warrant from a Justice of the Peace, and afterwards suffers him to go at large, upon his Promise to come again at such a Time and find Sureties, he cannot afterwards arrest him by Force of the same Warrant.”
4. Probably Law of Arrests 173–174, §8: “A Justice of the Peace (it is said) cannot justify the Granting a general Warrant, to search all suspected Houses in general for stolen Goods; for such a Warrant seems in the very Face of it to be illegal, because it would be very hard to leave it to the Discretion of a common Officer to arrest what Persons, and search what Houses he should think fit.... And yet there is a Precedent of such general Warrant in Dalton's Justice, notwithstanding the Unreasonableness, and seeming Unwarrantableness of such Practice.”
5. Law of Arrests 71–72, states the facts and holding of Rex v. Cook, Cro. Car. 537, 79 Eng. Rep. 1063 (K.B. 1640).
6. Law of Arrests 13, 14, §11: “The Coroners are not the proper Officers of the Court in any other Case, but where the Sheriff is absolutely improper.”
7. See note 5834 above. This may be 2 Shaw, Justice of the Peace 348: “If a Justice of Peace exceeds his Authority in granting a Warrant, yet the Officer must execute it, and is indemnified in so doing; but if it be in a Case, where he has no Jurisdiction, or in a Matter whereof he has no Conusance, the Officer ought not to execute such Warrant, for if he does, he may be punished....And so note, that the Officer is bound to take Notice of the Authority and Jurisdiction of the Judge.” See also id. at 347: “If a Person says, I arrest you in the King's name, &c. you ought to obey ... and if it appears afterwards that he was no legal Officer, an Action of false Imprisonment lies against him.”
8. See note 5834 above. This may be 1 Shaw, Justice of the Peace 260–261: “If a justice sends his Warrant to a Constable, to bring a Person before him to answer to such Matters as shall be objected against him, and doth not specify the Cause in his Warrant, for which he issued the same; this Warrant is unlawful, and the Officer is liable to an Action of false Imprisonment if he executes it; for all Warrants not specifying the Cause, are utterly against Law.”
9. See note 284 above. Paine used the symbol @ to indicate an answer to, or refutation of, an opponent's point.
10. The cases have not been identified.

Docno: ADMS-05-01-02-0003-0002-0001

Editorial Note

This case, an early instance of patriotic violence which disturbed Adams deeply, arose on the night of 19 March 1766 at Scarborough in the District of Maine, when a mob broke into the home and store of Richard King. The rioters terrorized King's pregnant wife and five children (including the future Federalist politician Rufus King), destroyed his windows and furniture, and burned a deskful of papers. The court files and related papers on this and other suits involving King suggest three roots for the townspeople's animus. First, many of them were his customers and owed him money; second, they had suspected that he was a prospective Stamp Act officer; third, they resented his claim that the parish, of which he had been treasurer, owed him money for disbursements.1
Despite threats of death if he sought legal redress, King pressed indictments against the mob members and petitioned the General Court for pecuniary relief (Document I). Meanwhile, in the spring of 1767, the mob had burned another house of his and a barn whose alleged size (72 by 32 feet) suggests King's financial position.
Unsuccessful in his efforts to obtain either vengeance or recompense, in March 1773 King finally commenced a civil action at Falmouth Inferior Court (now Portland) against John Stewart and nine others whom he numbered among his tormentors.2 The subsequent course of the litigation may be traced in King's remonstrance to the Superior Court (Document II) and in the writ of review (Document III) which the defendants obtained after a Superior Court jury at the June 1773 term had awarded King £200 damages for his losses in March 1766. The first Superior Court trial is of interest from the evidentiary standpoint, because testimony { 107 } of parties as to whom the action had been dismissed was allowed, as was handwriting evidence both for and against John Stewart.
Adams first appeared in the case as counsel for King at the trial in review, where King's cross-appeal seeking an increase in the damages previously awarded was also tried. Three of the remaining six defendants had defaulted, perhaps pursuant to an offer of settlement made by King (Document XI).
Adams' minutes (Document XIII) are unusual, because they contain not only a summary of the evidence but what appears to be a complete text of his address to the jury. That he considered this case unusual is strongly suggested by a letter to his wife, written at Falmouth on 7 July 1774 (Document XIV), which echoes the vivid phrases of his address. The two are virtually contemporaneous expressions of his distaste for indiscriminate mob action, apparently high on the eve of the Revolution after nearly a decade of participation in the affairs of the patriotic movement.
Despite Adams' rousing argument, the jury saw fit to increase King's recovery by only £60 10s. Moreover, it reversed the former judgment as to defendant Jonathan Andrews, awarding him £40 10s. to be remitted by King. The verdicts thus left the remaining defendants liable in a total of £260 10s., much less than the ad damnum of £2000 which King had alleged in his writ. Even this relatively modest judgment was not soon to be satisfied, however. As late as 1784 King's widow was still trying to realize upon it.3
1. As to King, see JA's comments and the editorial note on this case in 1 Adams Family Correspondence131–134. See also the files of King v. Stewart in SF 139590, 139642, 139645. For King's successful litigation with the Parish, see SCJ Rec. 1768, fols. 219–220; SF 139251, 139254. The undated minutes of a Grand Jury hearing, probably dating from 1766, also suggest that the Stewarts suspected King's servant of killing a horse of theirs. NHi: Rufus King MSS.
2. See Doc. III. The reasons for King's delay of seven years in bringing this action are not clear. He may have feared the vengeance with which he was threatened, or perhaps he felt that legislative redress was likely to prove more fruitful than an action at law against defendants of doubtful solvency. In any event, King escaped the bar of the statute of limitations by virtue of the Act of 20 Nov. 1770, c. 9, §2, 5 A&R 109, 110, which, extending the period of limitations for trespass to goods from three to six years, provided that such actions might be brought “within six years from the first day of December [1770], or within six years next after the cause of such actions or suits, and not after.” The same statute would have barred King's action if it had sounded in assault and battery, since such actions had to be brought “within one year, next after the first day of December aforesaid, or within four years next after the cause of such actions or suits, and not after.”
3. See the judgments in SCJ Rec. 1773, fol. 92; id. 1774, fols. 229–231. The actual damages enumerated in the declaration for the night of 19 March 1766 total £1425 3s. 1 1/2d., of which all but £27 was in notes and other obligations destroyed by the mob. The verdict may reflect the fact that King had been able to collect some of the debts represented by the lost papers. He was the successful party in numerous actions appearing in the Superior Court Minute Books for Cumberland and Lincoln counties for the years 1766 through 1774. See also note 122 below. The execution which issued to King after his first victory in 1773 was returned unsatisfied, and no execution in his favor issued after the decision in review in 1774. Execution against King issued in favor of Jonathan Andrews in Nov. 1774, but it was returned unsatisfied in May 1775, King having died earlier in the year. SF 119636, 109174. In 1784, King's widow prevailed in two actions of debt on the judgments recovered by her husband in July 1774. See SJC Rec. 1784, fols. 201–202; SF 139893, 139894. The files contain two executions returned in Nov. 1784 partially satisfied in the amounts of £36 8s. 10d. and £17 9s. 2d. SF 119637, 119638. In June 1790 she recovered upon a note for £50 given to her husband in Aug. 1773 by John, Joseph, Samuel, and Timothy Stewart, SJC Rec. 1790, fol. 140; SF 140140. This note, rather than Doc. XI, may have been the basis of the Stewarts' default in July 1774. See notes 351, 403, below.

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

Author: King, Richard
Date: 1768-01-04

King's Petition to the General Court1

4 January 1768
Province of the Massachusetts Bay To His Excellency the Governor The Hon[orab]le His Majestys Council and the Honle. House of Reprisentitives in General Court Assembled
Humbly Shews Richard King of Scarborough in the County of Cumberland in Said Province Gentleman That in the Night of the 19th of March AD 1766. a Number of Persons in Disguise with axes Clubbs &c. Broak the windows of the Dwelling House and WairHouse of Your Petitioner, and Entered both Distroyed the kitchen furniture &c. and marred the winscot of the Dwelling House Burnt and Distroyed Robb'd and Carried of from the Dwelling House and WairHouse Great Quantitys of Your Petitioners Papers and writings of Great value among which the Number of Bonds and notes of Hand for money Due which have already Com to Your Petitioners knowlidge togather with the Lawfull Intrest Due on the Same to the Time of the Riot Amount to the Sum of £1104/15/3 lawfull money of said Province Exclusive of other writings of Great value. That in the morning of the second Day after the Riot a writing was found put up at your Petitioners Gate in the name of Sons of Liberty Threatening Your Petitioner and Every other Person in the County that Should be Instrumental of any worrant or Summons to be Served on aney Person on account of the Riot he or they might Depend upon haveing their Houses and Barns Burnt and Consumed and themselves Cut in pices and burnt to Ashes. That in a Short time after another Threatening letter was lodged at the Door of one John Fitts who was a Tenant to Your Petitioner, therein warning him to Depart from that House within twelve Days or he might Expect to be Distroyd for they were Determined to Distroy King and all he had.2 That Eight Days after the Riot upon Complaint a Warrant was Issued by Several Justices of { 109 } the County Against such Persons as were Suspected, and Summonses for Such as were Supposed Capable to Prove the Fact. But with little Effect two only of the Persons Suspected Suffering them selves to be taken the others as also the Principal witnesses Either keeping their Doors Shut against the officers Going back into the woods or Going armed avoided being taken or summoned, that while the Justices that were assembled on this Occasion were waiting for the officers to Execute the warrants &c. a Number of the Riotous Party actualy Assembled in order as was Said to Rescue aney Person that might be apprehend, That in May following the House Improved by Fitts above mentioned was Set on fire and had Nigh like to have ben Consumed with the Household Goods therin which so Allaramed him that he soon Quit the Same which House was Soon after almost distroyed by tairing Down the Chimney &c. That Your Petitioner perciveing the Injuerys he had sustained by the Riot appeared to be pointed more at his papers then aney other Part of his Intrest and that maney Persons appeared Determined to take advantage of the Distruction of his Securities for the Discharge of their Debts &c. That sum from whome your Petitioner had Purchised Lands began to threaten a reEntery, upon finding their Deeds were not on Record, alledging for their Justification that your Petitioner had obtained Deeds, Bonds, and Notes by taking the Advantage of People. Wherefore your Petitioner by an Instrument in writing under his hand appointed the Two first Justices in the County togather with a Gentleman of the Law Arbitrators in General between my Selfe and all Persons (if aney there were) who will appear before Said arbitraters within three months and alledge their having Suffered or being lyable to Suffer by means of aney Deed of Sale Deed of mortgage or Bill of Sale Bond note of hand or other Obligation whatsoever, with Three months more to prove the Same was by Your Petitioner fraudelintly Obtained as they alledge.
And if upon a full hearing of the matter aney such fraudes Should appear on the Part of your Petitioner Said Arbitraters were therin Desired to Certifie the same in writing under their Hands which Certificate if refering to a Deed of sale Deed of Mortgage or Bill of Sale Should Intitle the Party to recover the whole Consideration over again or if it referred to aney Bond Note of hand or other obligation whatsoever to be Sufficiant in aney of His Majesty's Courts of record to Barr aney action that might Ever after be brought upon Such obligation respectively, therin also Subjecting himSelfe to pay all Cost and Charge arising by Such Dispuet wherin he Should be found in the wrong which Submission Your Petitioner notified at length in two { 110 } [of] the most frequented Taverns in said Town of Scarborough, But no Person Ever appeared, nor Applied for aney redress, That while the officers were Indeviouring to Summon the witnesses to attend the Sup[erio]r Court in this County June 1766. Seven windows in a Dwelling House belonging to Your Petitioner were broak and Distroyed. That in the month of Augt. following Your Petitioner Suffered the Loss of an Ax Stole out of his Pasture Suposed to have ben Taken by Sum of the riotous Party who Imploied them selves back in the woods to be out of the way of an Officer. That in the Night of the 4th March last the Dwelling House last mentioned (which had ben lately refitted) was attacked the Boards and Clapboards Tore off the Sealing beat in, and the Posts and Studds Cutt off and the House rendered Irepairable. That in the night of the fourteenth of May last being a few Days after the apprehending and Imprissoning one Silas Burbank upon an Inditement for the Riot,3 a Barn belonging to Your Petitioner of more then seventy foot Long and thirty wide Covered and fixed in the best manner togather with a Shedd of Eighty foot Long was burnt and Consumed with sum Hay and most of your Petitioners Utensils for Husbandry. And Two of your Petitioners best Calves Killd and Carried off at the same Time. That your Petitioner has ben at Great Trouble and Expence in Indeviouring to bring those Rioters to Justice that altho a Number were Indited at the Supr. Court in this County June 1766 and warrants against them Given to proper officers and those officers afterwards actualy in Company with Sum of those the warrants were against Yet the same have not ben Executed upon aney Except Burbank above named and not on him till he Grew so Bold as to use the Goalkeepers House as a Tavern, the reason assigned by the officers for not Executing the warrants when both togather were in Companey with Sum that were Indited, was, that they Did not think it safe and were actualy afraid to Execute the same. That During this time the Rioters Party have ben Sending off to Machias and other Places Such as might have ben made use of as Witnesses against them and Greatly Intimidating others So that the obtaining witnesses against them (all Circumstances Considered) must be attended with Great Difficulty if not Impossibility to your Petitioner. That for a Privat man to bring a Great number of Persons to Justice for such Dissorders as first origenated under a Notion of Publick Utility Committed in a Time of General Dissorder and Confusion { 111 } while others who were alike Guilty were Exempt from Punishment by act of Government4 is a Burthen too Great and attended with too much Hazerd to be Effected by an Individual at this Time. That as it is Evident the Injuryes Your Petitioner has sustained is by a Detachment of the Spirit of Dissorder above mentioned the other Sufforers by which have ben Since Compensated. Your Petitioner thinks it an unhappiness and Misfortune peculer to him Selfe to be obliged Either to Sell [Sett?]down by his Losses or Go through Such an ardous [ . . . ][undertaking] to Repair them as appear more likely to render his Losses Double Such an undertaking as Even Government it Selfe has though[t] fit to Decline and Yet to be Taxed to the Compensation of others. That Notwithstanding your Petitioner has taken all possible pains to obtain the renewal of the obligations he Lost by the Riot by offering long Credit and Easey Payment, Yet the amount of the Sum that is neither paid nor renewed nor Can be Confided in to be paid renewed, or in aney wise made Good by the respective Debtors is £463/3/51/2 Exclusive of the Intrest on the same Since the Riot. A List whereof togather with the other articals of Loss Sustained by your Petitioner as above is herewith presented to Your Excellency and Honours.
Which Losses and Damages togather with the Exposed Scituation of Your Petitioner Your Petitioner Humbly Supplicats Your Ex[cel]le[nc]y and Honours to take under Your wise and Just Consideration, and that Your Excellency and Honours would be pleased to Compensate and make Good to Your Petitioner the Injureys he has Sustained from the Hands of those Riotus Persons as also that your Excellency and Honours would be pleased to Direct in Such wise with respect to any further Process against them, that the Intrest of your Petitioner may be Secured from any further Distruction at their Hands. All which Your Petitioner Humbly Submitts and Prays.
[signed] Richd. King
1. FC, in an unidentified hand, signed by King. NHi:Rufus King MSS. The chaotic punctuation of the MS has been left undisturbed. A petition from King was presented to the General Court on 20 Jan. 1768 and referred to a committee. No record of action on it has been found. Mass., House Jour., 1767–1768, 2d sess. The list King mentioned in the penultimate paragraph below has not been found. It probably resembled the “schedule” annexed to his writ, discussed in note 122 below.
2. The anonymous message addressed to King by the Scarborough “Suns of liburty” is printed as Doc. X below. That to Fitts was as follows: “Fits this Is to Give you notice that Wee are all ditirmand If you dont move off and Leave the Place We Will Sarve You as We dide king Cause we are ditirmand to destory him and all he hass. And Wee Give you 12 days to go of in and if you ant gone in that time you may Expect to be destroyed. Samuel oos.” NHi:Rufus King MSS.
3. Burbank was undoubtedly released when the indictment was not pressed. His subsequent incarceration in 1773 was on a body attachment in King's action of trespass. See note 262 below.
4. The reference is apparently to An Act for Granting Compensation to the Sufferers, and of Free and General Pardon, Indemnity and Oblivion to the Offenders in the Late Times, 6 Dec. 1766, 4 A&R 903. This Act, which was later disallowed by the Privy Council, compensated royal officials injured in Boston's Stamp Actriot in Aug. 1765, and extended amnesty for events through 1 May 1766. It contained a clause providing that it should be a good defense to any indictment for rioting and the like. Despite the disallowance, payments to the “sufferers” were made under the Act, and it probably was effective in other respects as well. See 4 A&R 931–945. The Act probably would not have protected King's tormentors, since it was not effective to pardon rioting, “wherein any burglaries, arsons, or thefts were committed against the properties of persons not compensated” by it. But it cannot have made the job of bringing the offenders to justice any easier. For JA's report of popular reaction to the idea of indemnification, see 1 JA, Diary and Autobiography323–326.

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

Author: King, Richard
Date: 1771-07-02

King's Remonstrance1

Richd. Kings Remonstrance to the Superr. Ct. July. 1771
To The Honle. His Majesty's Justices of the Supr. Court of Judicature Court of Assize &c. Now Holden in the Countys of Cumberland and for the County of Cumberland and Lincolen
Richard King of Scarborough in the County of Cumberland Humbly remonstrates that by a riot in the night of the 19 of March AD 1766 His Dwilling House and waireHouse were broken up and a great number of his Notes and Bonds for money due and other papers of value were burnt or Carried off by the Rioters, Exclusive of other Damages, that altho' thredened by letter and otherwise that if he was the Cause of any warrants or Summonses being served on any Person or Persons on that acco[un]t he might depend upon it, his Cattle should be killed, his House, and Barns Burnt, and himsilfe Cut to pieces and burnt to ashes. That notwithstanding their many threats and Menaces Your Remonstrant persued the measuers directed by the then attorney General, upon which fourteen Persons were Indicted at the Supr. Court 1766. preparitory to the Supr. Court in 1767. Wittness were summoned and sum persons Indicted were taken, but by reason of a failour of Juriours from said lower County no new Indictments Could be found, nor the olde ones brot On Tryall. Your Remonstrant made the utmost Efforts again preparitory to the Supr. Court 1768. and Caused witnesses to be summoned who if they had appeard and Deposed the Truth must have proved those Guilty who were under Indictment and then before the Court, and ben the means of procuring new Indictments of those that Distroyed his farmHouse and burnt his Barn &c. The Honle. Court ordered a Warrant, and an officer was sent after them, who made return he could not find neither of them. So nothing further was don at that Court nor since til now, in this length of time sum persons have disclosed matters that did not appear before, and other Circumstances which Gave Incouragement to your Remonstrant to make a new attempt. Accordingly on Satterday last Your remonstrant having precured a new warrant for the Persons Indicted, percured Timothy Stuart, one of the Principel actors among them that were Indicted to be apprehended by one Abraham Lavit one of the Counstables of Scarborough. But the officer not being { 113 } sufficiantly on his Guard, suffered the said Timothy to make his Escape on his way to the Goal.2 The Loss sustained by Distruction of your remonstrants security for money Due (Exclusive of what has bin since in any wise paid or renewed) togather with the Intrest amounts to £743.0.10 Exclusive of all other matters, which upon the whole must Exceed £1000. LMy. [lawful money] Exclusive of the Great Pain to him Selfe, wife and Children, Trouble and Expence in Endiveouring to bring the Parpitrators to Justice and to hire mento Guard his House3 against their outrage agreeable to their threats while he was so Doing. Wherefore Your Remonstrant Humbly Supplicates Your Honours to take his Case under Consideration, and that Your Honours would be pleased to Take such Imediate measuers as may Tend to reduce his Distroyers to reason and open the way for his redress.

[salute] All which is Humbly Submitted by Your Honours Most Obedient, and most Humble Servant

[signed] Richd. King
1. FC, apparently in King's hand and signed by him. The docketing note on verso is printed here as a caption to the document. NHi:Rufus King MSS. It has not been determined whether this “Remonstrance” was ever submitted to the court. No action upon it appears in the Minute Books.
2. Documentation for this account is in the Suffolk Files. See the indictment, dated June 1766, in SF 87727. Although John Stewart's plea of Not Guilty, dated June term 1766, is on the verso of this document, the Minute Books of the Superior Court show that none of the offenders was ever actually tried. Min. Bks. 76, 87, 92, 99, SCJ Cumberland and Lincoln. Most of the warrants which King describes, including that for Timothy Stewart, with a return reporting his escape, are in SF 87726, 88530, 89145, 90305.
3. In a letter to King dated 18 May 1767, Col. Samuel Waldo, apparently commander of the Falmouth militia, regretfully informed him that if he wanted a military guard it would have to come from Scarborough, but suggested that if he was leery of entrusting his fortunes to his fellow townspeople, he might hire his own guards and ask the General Court to reimburse him. NHi:Rufus King MSS.

Docno: ADMS-05-01-02-0003-0002-0004

Author: Adams, John
Date: 1774-06

Writ of Review—Stewart et al. v. King1

Cumberland Superior Court, Falmouth, June 1774
To the Sheriff of our county of Cumberland his under-Sheriff or Deputy, Greeting.
We command You that You summon Richard King of Scarborough in our County of Cumberland Esqr. (if he may be found in your precinct) to appear before our Justices of our Superior Court of Judicature Court of Assize and general Goal delivery to be holden at Falmouth within said county of Cumberland and for the countys of Cumberland and Lincoln on the tuesday next after the fourth Tuesday of June next, then and there in our said court to answer unto { 114 } John Stewart Yeoman Jonathan Andrews Blacksmith, Amos Andrews Yeoman Timothy Stewart Yeoman, Samuel Stewart Yeoman, and Jonathan Andrews junr. Blacksmith all of said Scarborough In a plea of Review of a plea of Trespass commenced and prosecuted at an inferior court of common pleas held at said Falmouth on the last Tuesday of March seventeen hundred and seventy three by the said Richard against the said John Jonathan, Amos, Timothy, Samuel and Jonathan Andrews junr. and also against Jonathan Wingate Silas Burbank and Benjamin Carl in the words following, to wit, In a plea of Trespass for that the said John, Jonathan Andrews Amos Jonathan Wingate, Silas Timothy Samuel Jonathan Andrews junr. and Benjamin Carl at Scarborough aforesd. on the nineteenth day of March, AD 1766, in the nighttime with force and Arms broke and entered the said Richards house in said Scarborough wherein he and his family then dwelt and then and there with force as aforesaid broke and destroy'd seven of his glass windows of the value of seven pounds and cut and defaced the wainscott stair case within the said house of the value of six pounds bruised and ruin'd three dozen pewter plates and dishes of the plaintiffs of the value of four pounds ten shillings broke and destroy'd the plaintiffs stone earthen and brassware Kitchen chairs table and other household Utensils and furniture there found of the value of six pounds broke open and destroy'd the said Richard's desk in his said house of the value of four pounds, broke and entered the said Richard's shop near his said house, took and carried away from said house and shop and burnt and destroy'd divers deeds, notes of hand bonds and other papers of the said Richards a schedule whereof is to the writ annexed of the value of thirteen hundred ninety eight pounds three shillings and a penny half penny2 and put the said Richard and his family into great fear and distress and danger of their lives and for that3 the said John Jonathan Andrews Amos Jonathan Wingate Silas Timothy and Samuel Jonathan Andrews jnr. { 115 } and Benjamin Carl afterwards on the second day of March, AD 1767, at said Scarborough with force and arms cut down ruin'd and destroy'd another house of the said Richard in said Scarborough of the value of fifty pounds and afterwards upon the fourteenth day of May, AD 1767, at 3d. Scarborough, the said John, Jonathan Andrews Amos Jonathan Wingate, Silas, Timothy, Samuel Jonathan Andrews junr. and Benjamin Carl with force as aforesd. burnt and destroy'd the said Richards barn there seventy two feet in length and thirty two feet in width of the value of eighty five pounds and his shed adjoining the same barn of the value of fifteen pounds one load of English hay being in said barn of the value of fifty shillings two bushells of his Flax seed of the value of twelve shillings his hay Cart of the value of twenty four shillings twelve rods of his barnyard fence there of the value of four pounds, and took and carried away two sleds of the value of twenty four shillings each six ox yoaks of the value of thirty six shillings six hay forks of the value of twenty shillings four scythes of the value of twenty four shillings four sickles of the value of six shillings and ten rakes of the value of twelve shillings all the property of the 3d. Richard and divers other of his utensils of husbandry there found of the value of forty shillings and also took carried away and kill'd two of his calves there found of the value of thirty six shillings, and other enormities and wrongs did there at the several times aforesaid to the 3d. Richard against our peace and to the damages of the said Richard as he says the sum of two thousand pounds, at which 3d. inferiour Court Judgment was rendred that the 3d. John Stewart Jonathan Andrews Amos Andrews Jonathan Wingate, Silas Burbank, Timothy Stewart Samuel Stewart, Jonathan Andrews junr. and Benjamin Carl recover against the said Richard King cost of Suit;4 from which Judgment the 3d. Richard appealed to the 3d. Superiour Court of Judicature &c. held at said Falmouth on the Tuesday next after the fourth Tuesday of June last, when and where the 3d. Richard moved the Court that he might be allow'd to strike the names of Silas Burbank Jonathan Wingate and Benjamin Carle, out of the original writ, and it was granted;5 and their names was struck out accordingly, and the 3d. Silas Jonathan and Benjamin in the same court acknowledged themselves satisfied as to their costs { 116 } and Judgment of the same Court was rendred that the said Richard King recover against the said John Stewart, Jonathan Andrews Amos Andrews, Timothy Stewart Samuel Stewart and Jonathan Andrews junr. the sum of two hundred pounds lawfull money damage and costs taxed at twenty two pounds twelve shillings and a penny; which same Judgment the said plaintiffs in this writ of Review say is wrong and erroneous and that thereby they are damnified the Sum of two hundred and fifty pounds wherefore for reversing the same Judgment and recovering back from the said Richard King the 3d. Sum of two hundred pounds and the same cost and for recovering Judgment against him for cost of Courts they the plaintiffs in Review bring this Suit....6
And the said Richard King comes and defends &c.7 and Saith that the Said last mentioned Judgment is in nothing erroneous, Saving that it ought to have been for Two Thousand Pounds8 and thereof puts himself on the Country.
[signed] John Adams
[signed] And the said Plaintiffs in Review likewise.9James SullivanJohn Sullivan } their attorneys
1. SF 139642. In the hand of Nathaniel Hatch. Caption (“Province of the Massachusetts Bay.... George the third,” &c.) omitted.
2. The “schedule” lists fifty-four notes of hand, three bonds, eight deeds, five copies of executions and records of pending cases, one lease, and “many other papers which I cannot now ascertain but suffer for the want of in Defending myself against the Suits of many persons,” the whole totaling the amount alleged. The schedule also indicated, however, that of this sum £510 1s. 3 1/2d. in notes and bonds had been “paid or Secured to me by Several Debtors.” SF 139590.
3. In the margin of King's writ of review appears a notation that King's motion to strike the second and third counts of his declaration was granted with the defendants' consent. SF 139645. Thus the incidents of 2 March and 14 May 1767 were not in controversy on the trial in review, probably because King's proof was insufficient; on the first trial in the Superior Court in June 1773, the jury had found the defendants “not guilty” of the trespasses alleged in the second and third counts. Min. Bk. 99, SCJ Cumberland and Lincoln, June 1773, N–1.
4. Judgment in the Inferior Court was rendered on the verdict of a jury after pleas of the general issue by the several defendants. SF 139590.
5. As to this maneuver, designed to make these men competent as witnesses for King, see Doc. IV. The lists of witnesses in the files show that Wingate and Burbank gave depositions and testimony for King in June 1773. SF 139590. All three testified in June 1774. See Doc. XIII.
6. King's writ of review was substantially identical with this one, except in the relief sought, which was the recovery of an additional £1800, the remainder of the original ad damnum of £2000. SF 139645. (The teste and return of service are omitted.)
7. For the language used here, see p. 43, note 3822 above.
8. This assertion, perhaps analogous to a counterclaim, might well have been objectionable under ordinary pleading rules. It is obvious, however, that these rules were not observed closely in the rather special situation of the writ of review, which had no English equivalent, and formally raised only the single broad issue whether anything in the prior phases of the action had been erroneous. Since as a practical matter both this action against King and King's action seeking an increase of the judgment would be tried together, a pleading with such an exceptive clause avoided any inconsistency of position. A similar form was employed by the defendants in pleading to King's writ. SF 139645.
9. Both plea and joinder are in JA's hand, although the Sullivans signed the latter.

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

Author: Cushing, William
Date: 1773-06

Cushing's Report of the Argument1

Cumberland Superior Court, Falmouth, June 1773
Richard King v. Jno. Stewart & al
This was an action of trespass—and on motion of Mr. Bradbury attorney to plaintiff after issue joined—plaintiff was allowed by the Court to strike out the names of several of the Defendants in order that they might be witnesses for plaintiff—on payment of costs—1 { 117 } Wils. 89, Trials per pais 386, Str. 420, were cited.2 On the trial of the issue the plaintiff offered to prove, by comparison of hands that an anonymous letter which had been found posted on the plaintiff's door was written by Defendant—This kind of evidence was objected to by Sullivan for Defendants—but allowed by the Court as good in civil actions.
Oliver, CJ, Hutchinson, Ropes and Cushing, Justices
Vide Evans' translation of Pothier on obligation Append. 2d vol. No. XVI sec. 6c.3 8 Ves. 438 Egleton v. Kingston.4
1. Cushing Reports, fol. 4.
2. It was necessary for King to dismiss his action against those defendants whom he wished to have testify for him, not merely to dispose them favorably toward him, but in order to make them competent as witnesses. At common law, parties to an action could not testify. The authorities cited in the text were as follows:
Noke & Chiswell v. Ingham, 1 Wils. K.B. 89, 90, 95 Eng. Rep. 508, 509 (K.B. 1745): “Lee Ch. Justice: It is agreed on all hands, that in trespass against several, the plaintiff may enter a nolle prosequi [an abandonment of further prosecution] as to one, and that will not discharge the other.”
2 Duncomb, Trials Per Pais 386 (8th edn., 1766): “Trespass against several; after issue joined on motion, one of the defendants name was struck out, that he might be a witness for the plaintiff. 2 [i.e. 1] Siderf. 441 and the like done as to a person named in the simul cum [“together with,” i.e. the phrase linking defendants known and unknown], 1 Mod. 11.”
Bayly v. Raby et al., 1 Str. 420, 93 Eng. Rep. 608 (K.B. 1721): Motion to consolidate four separate declarations in trespass against four separate defendants denied, despite affidavit that the trespass, if any, was committed by all jointly. “The plaintiff may have the benefit of the other's evidence in his action against either, but this will be to deprive him of that.”
3. M. Pothier, A Treatise on the Law of Obligations or Contracts, 2:182–186 (London, transl. W. D. Evans, 1806). An essay by the translator on the English law of handwriting evidence. “[T]he practice of the law seems to be clearly settled, that the casual knowledge or belief of a person, who has once seen the witness write, and speaks from the effect of that incident upon his memory, in respect to the character of the writing, is admissible, and a sufficient foundation for reading the disputed paper; but that a direct comparison with the greatest possible number of authentic papers, indicating the similarity to the most obvious inspection, and confirmed by the most critical scrutiny, is wholly inadmissible.” Id. at 185. This and the citation in note 4note 23 below were obviously added, by someone unknown, at a date much later than 1773.
4. Eagleton & Coventry v. Kingston, 8 Ves. Jr. 438, 474, 32 Eng. Rep. 425, 438 (Ch. 1803), per Lord Eldon, C: “[T]ill very lately, I never heard of evidence in Westminster Hall of comparison of hand-writing by those, who had never seen the party write; though such evidence had been frequently received in the Ecclesiastical Court.”

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

Author: King, Richard
Recipient: Burbank, Silas
Date: 1773-05-31

King to Silas Burbank1

[addrLine] Mr. Burbank

[salute] Sir

I receved Yours of the 17th. Current, and a Second that appears { 118 } to have ben wrote Since. In your first You point out the Horrows of a Goal, and Compair Your present state of Confinement, To that which Succeeds a wicked life in this world unregreted, and unrepented of, with a verry Just Exception. If taken in a spiritul Sense that You are a Prisoner of Hope, Your Pathatic Complaint of being deprived of the Company of an agreeable wife, and the parental Duty You owe to your Innocent Children, is Sufficiant to move a Heart much less Serceptive of Humain Misery then mine. You Conclude with observing, the Time has ben, when our affections mutualy flowed in kindness towards Each other, But that now there is as remarkable a Coldness.
Now Sir as You have opened this Channel of Communication between us, I will Treat the Subject with that unreservedness of mind that I should be glad to have from You. If I shall herein Charge you wrongfully in any Part, I will (when that shall appear) not only aske Your Pardon, but Publickly Confess my Error.
You Justly observe, the Time has ben when there was a mutual flow of Affection between us. I Can only add, that on my part it was Sinceer. Let us now Enquire how the Change Came, and who was first in the Offence, was it not anough on Your part to make use of the law. To Palm The Cabinet wair on me, which our privat Confidence in Each other Should have obliged You to have look'd upon as Sent at Your own Risque.
But having Comminced your Action against me at Oct. Court 1765 in order to make up your own loss, out of the owner that had also lost the Vessell that Carried it: How then Could you think of Joyning in a Plan, and Find [Fiend] like Exerting Your Selfe in adding final Distruction to the remaining Interest of your Confessed old Friend. You now Complain of the Dismel Gloom of a Goal, wherein you are Surrounded, with Massy Barrs of Iron, and thereby deprived of the Peacefull and InExpressable Philicity of Family Connections. This Misfortune You point to me, as tho I was mercyless and Cruell, void of Natural Affection, and delighting in misery. As almighty God has made all men of one Blood, and Given them the Same perseptions of Pain and Pleasure, Love and hatered, life and Death Com back with me to the 18 of March 1766. Here view Your Selfe without the least Cause of affrunt; Engaging others on that and on the Succeding Day to meet at Your House on the night of the 19th. keeping that blackest part of the Designe a Secret from all Such who's humanity you sur• { 119 } spected would Shudder at so Dark a Sceene, Till you had Got them mett at your own House with you and other whoes minds were Proof against all Virtue. Behold Your Selfe using fair Speaches, and threats by Turns, to hold Those that discovered an unwillingness to Joyne in So Horrid an act of Ingratitude, and unjustness. But behold Still the most Horrid Part Consealed in the brest of you and a Select few, that were at the Bottom. In fine behold your Selfe now at the Head of a Banddity of Thieves and Robbers, under the Cover of night, determined to Carry Terror, and Turpitude unprevouked Destruction and Enrich Your selves out of the Spoiles of the Greatest Benefactor in Trade that Ever Dealt in the Place. To Robb and Plunder him of the verry means with which he was to discharge the Debt which he owed for what they and others had Eat, Drunk, wore, bought, and built with and this Too at a Time whin his late Loss would have Excited Pitty from one Enemy Towards another.
Here let the Sceene Change to the House of him whoes doors were allwais open, whoes open Heart had dealt out (tho' Greatly to his loss) as freely to the Necessities of the Poor, as to the Abilities of the Rich. Here behold a General Benifactor Sleeping in Perfect Security, not dreaming of Envy or Mallice, his bosom Frind upon his arm who's months with her at that Time Called for Tender usage, his Young Brood lodged around him. In this state awoaked out of sleep by the dashing in of his windows, behold him in Great amaze opening the Chamber door, Calling aloud to know the matter, his wife holding him by the arme, no humain voice in answer, Except a servant informing that his life was threatened In case he attempted his masters Relief. Here behold a murcyless hand Thorw a hatchet into the windo whence the voice of distress was heard which dashing the Glass about the Naked Bodys Scarce Miss'd their heads. Behold the Tenderer Sexes in untimly Time for flight, faultering, Sinking, Dieing, and the distress'd Husband Conveying her back to her Bead to Die there but being doubly armed with life, Each by Turn recaught the Electrical Fire. Open also your Ears to the Tender Cryes of his Childeren Crying, Father woant they kill me, Father Save me.
View this and much more also, not as an Ammaginary, but as a real Act, and Your selfe as a Principal actor in this, Original Tragedy. Then passby all that past between. Even Your threats uttered to myface Til we Com to the Night of the 14th. May 1767. Here Stop and view the Flaims. Consider well the Spirit that set them on Fire recolect the out Guards Planted there, and near my own Dwilling House also at the Same Time; hear and See a frish the Destress of a mother. { 120 } Espessuuly upon hering her outcries Eccoed by one find [fiend] to another in the Neighbouring bushes. Here again the Cries of helples Children, Intreeting their pairents to flee as Expecting Every momentto be Surounded in flaims, but flee wheather. Devowerers had Surrounded us, and were Yelling like finds of H—ll for their prey. Two fatted Calves did not appear to Suffize them. Take a Back Sight upon the whole. Look up to God, as looking upon us lay Your hand on Your brest, and Say Your Innocent of any part of the foregoing Charges, or that King has Treated you unjustly. In Your Second letter, you Say “You think the poor Deceased Captive Creaturs have little Sense of what is Past, and that for all that is past, to the Day Instent, the portions remaining to all are Equall.” I Chuse to leeve it to the Proper Profession to Instruct how Solomon and other Sacred writers are to be understood but without Intrudeing; I think this much may be Clearly asserted that vice only can make us Miserable in this life, that he that allowedly lives and Delights therein Can never be happy so long as his mind is So desposed and that on the Contrary the Virtous and well meaning Can never be Miserable. For the Truth of this we need only look into our Selves, and Enquire, whether vice Ever gave us True Pleasure, or Virtue Pain. The Same that we Sow, that shall we reap, and the Lord of the Harvest will Gather us accordingly.
1. FC, apparently in King's hand. Docketed in same and another hand. NHi:Rufus King MSS. This and the following documents indicate something of the mechanics by which Burbank's testimony was obtained.

Docno: ADMS-05-01-02-0003-0002-0007

Author: Burbank, Silas
Date: 1773-06-28

Burbank's Release1

28 June 1773
Whereas Richard King Esq. hath released me from Gaol where I have been sometime confined by having my body attached by a writ of Trespass in which the said Richard is Plaintiff, and John Stewart myself and others defendants2 at my request in consideration there• { 121 } of and of five shillings paid me by said Richard I do hereby release unto the said Richard all cause of action whatsoever I have or may have against the said Richard on account of having my body attached and imprisoned as aforesaid.
[signed] In witness whereof I have hereunto set my hand and Seal this twenty eighth day of June in the eleventh Year of his Majesty's Reign, An. Dom. 1773.
Theo. Parsons
[signed] Silas Burbank
1. In an unidentified hand; docketed by King: “Burbank's Release to Richd. King, Esq.”; signed by Burbank. NHi:Rufus King MSS. This document represents a release by Burbank of any rights against King for false imprisonment.
2. Burbank was taken and committed in accordance with King's writ on 12 March 1773. SF 139590. Although judgment in his favor was handed down atthe Inferior Court, March term 1773, the attachment apparently remained in force pending the appeal. By statute, execution on the Inferior Court judgment was stayed. The process in that court seems to have served also to compel appearance in the Superior Court, the defendant's protection being the bond which the appellant had to post. The statutory provision that no person imprisoned on mesne process was to remain in jail more than 30 days after the rising of the court to which the process was returnable unless his body had been taken in execution was thus apparently suspended by the stay of execution on appeal. See Act of 12 June 1701, §§8, 9, 11, 1 A&R 465–466.

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

Author: Burbank, Silas
Date: 1773-06-28

Deposition of Silas Burbank1

28 June 1773
I Silas Burbanks of lawful age testify and say, that in the spring of the Year 1766, a few days before the riot at Mr. Richard Kings dwelling house, I was at the house of Mr. John Stewart, and he was talking to me about said King; he asked me if he was not a bad man, and had not done as much hurt to the people here, as Bute had done to the people at home; and afterwards, the day before the riot at Mr. Kings house, I was again at said Stewart's house, when he talked with me about King, and told me he was a bad man; had done a great deal of hurt, had treated him very unrighteously; and that he had killed his Mare; that they were going to give him a rally; and the Mischief Mr. Stewart proposed should be done to Mr. King was, either to destroy him, or destroy his papers, or whip him, but I am not certain which of them, but am certain it was one of them: Stewart said it was a good thing, and would do King good, and make him a better man; he also encouraged me to go, told me I had better, and used arguments to persuade me to go. I then asked him if he was a going, but am not certain, whether he said he should go or not, but I very well remember he said, if he did not go, his sons should—He said it was the best thing that could be done, and urged me by all means to go; he also told me that King was a favourer of the Stamp Act. I have seen Stewart several times since the Riot, and when we were conversing about it, he always desired me to keep it a secret, and once told me, he would spend his life and fortune before anybody should be hurt by it.
I further testify and say, that the day before the Riot at Mr. King's house, I was talking with Amos Andrews near his house, when An• { 122 } drews asked me, if I had heard what they were going to do. I asked him what? He answered we are going to pay King a visit and take him down; don't you intend to go? You have a dispute with him, and you see how he<uses>trys to cheat you, and may judge by that, how he uses every body and dont you intend to show some resentment? He is a bad man, and will ruin us all, if he goes on at this rate; if something or other is not done with him, if he is not humbled, it is not worth while for any of us to live here; and he is hard hearted to the widow and orphan. I asked him who was going? He answered he was going, and all their people up their road; that every body almost was going; and that Stewart's family was going. I asked him if he should certainly go; he said he should certainly go, and gave me his word and promise over and over again, that he would go, for he said it must be done. I asked him what he proposed to do to King if he went. He answered, we propose to take him out and cut his ears off. I told him, that would not do, for it was monstrous; he then said we will take him out and whip him; He also talked with me about the Stamp Act, and said that King was a favourer of it, and had the Stamp papers in his house; and that it was probable if that Act took place, he would be Stamp Master for Scarborough. This argument, with a vast many others, he used to persuade me to join them, and be one of them, for says he, we have already agreed upon it. He also urged me very much to go with them; said it was the best thing that could be done and it was no Sin. After the riot, he told me he was very sorry he was not there, for he was prevented by a bad belly ach, but was a well wisher to it, and would be as faithful as if he had been there; and always since the Riot, he has been very urgent with me to keep the affair secret. I further say, the Evening Mr. King's farm house was cut down which was some time after the riot at Kings dwelling house when some persons were hanging up a dead colt before it, it was proposed to cut the house down, whilst Andrews was present, when somebody asked him if he would lend his axes; he said his axes were dull, but they might have them, and they lay on the hill before his door. I was also at Andrews's a day or two after the farm house was cut down, and asked him if he heard them, he said yes; I asked him if he was up, no replied he, I and my wife went to bed, and I will tell you something comical; we had a Molatto, who was a bed upstairs, and when they were cutting the house down, the Noise waked him, and he called to me to know what the noise was. What noise says I. A great noise, answers he, don't you hear it. O says I, a parcel of people are cutting down Brother Elijah Sellea's house. What, says he, that poor lame { 123 } man's house, I will get up and help him. No don't stir for your life says I, they will come and cut down our house, I expect, so don't stir for your life, for you will be killed.
I further testify and say, that the evening before said riot at Mr. Kings house, I was at Jonathan Andrews's shop. He asked me if I had heard what they were going to do with King. I asked him what? He said they were going to have a frolic with him, that it was a very good thing for King was a bad man, and he mentioned several bad things, that he said King had done; that it was absolutely necessary something should be done with him, he was grown so arbitrary and bad. He objected against hurting Mr. King's Interest, but proposed their taking him out and whipping him; and he encouraged the thing very much. I asked him if he was going: he said he did not know, but he believed his son would. Since the riot, he has been very urgent with me to keep the affair secret. I further testify and say, that Joseph Stewart, Timothy Stewart, Samuel Stewart, and Jonathan Andrews junr. were present aiding and assisting at the riot at Mr. Kings dwelling house.
[signed] Silas Burbanks
[Verification omitted.]
The Deponent adds, It was in the night when I saw the person whom I supposed to be Amos Andrews, but I cannot say it was he otherwise then as I judged it to be him from the voice and appearance of the person and his Dress.
[signed] Att. Sam Winthrop Cler.2
Sullivan expressly allows that the Witnesses swear that Amos Andrews encouraged them to mob King, which includes every supposable species of Trespass.3
1. 28 June 1773, SF 139645. Signed by the deponent.
2. The preceding paragraph was added in court at the trial.
3. This was apparently a stipulation between counsel designed to avoid a time-consuming semantic battle. It appears in an unidentified hand on a separate scrap of paper which was apparently at one time attached to the deposition. SF 139645.

Docno: ADMS-05-01-02-0003-0002-0009

Author: Newbegin, John
Date: 1773-01-19
Date: 1774-07-09

Deposition of John Newbegin1

19 January 1773
I John Newbegin of Lawful Age testify and say that the Evening of the 18th Day of March 1766 Silas Burbanks spake to me and told me a number of People were to meet at his House next Evening and { 124 } were going to take a walk, that he had wanted to see me a good while and ask'd me if I would come. I promised I would and accordingly I did; Timothy Stuart, Samuel Stuart, Jonathan Andrews Jnr. with several others met there the Evening of the 19th of said Month and the said Silas was present, it was then proposed by some of the Company to go down to Mr. Richard Kings to punish his Body (because they said he had been a bad Man, destroy'd the poor and taken away Peoples Estates) which was agreed to by the above named Persons and about nine oClock, (I judge it was) they set out I went with them as far as the Road against his House but did not go out of the Road. The Reason I did not was because I found by their talk they were going to carry Matters further than I expected, but the said Silas Burbank, and Timothy Stuart, Samuel Stuart Jonathan Andrews Jur. with others go into the House and Shop as they told me afterwards and were all active in breaking open the House and Shop and doing the Mischief that was done, we all return'd to said Burbanks and staid there an Hour or more; there I saw several of the said Richard Kings Notes of Hand which the said Silas either read or delivered to some of the Company to read and then they were thrown into the Fire and burnt up, one by one as they were read. Among others I remember a Note against Nathl. Milliken two or three Notes against some of the Stuarts either the Father or Sons or both all payable to said Richard, and there were among other Papers said Burbanks and some of the others shewed which were brought from Mr. Kings—Burbanks said they broke open Mr. Kings Desk to get his Papers and some or other of the Company mentioned destroying the Pewter and hacking the Walls of the House. The breaking the Windows I heard; they made a very great Noise breaking in and doing the mischief, but said but little. Further I say that we waited some time before we went to Mr. Kings for John Stuart the Father of the above named Stuarts, Amos Andrews and Jonathan Andrews, some of the Company saying they had promissed to come, and Amos Andrews afterwards told me he designed to, and should, have been there but he was not well. I have heard the said John Stuart, Amos Andrews, and Jonathan Andrews often say since that they were very glad the Thing was done, and let what would come they would bear their part of the Cost that might arise, and from frequent conversation with them, I <understood> clearly perceived they were knowing and advising to the said Riot before it was committed. And I know they three did contribute Money to get Burbanks out of Gaol at York where he was comitted for an Offence in rescuing some Oxen from Benja. Hooper an Officer, and the Reason they paid { 125 } for him was for fear he should turn Kings Evidence2 if he could not get out any other Way. The said John Stuart, Amos Andrews and Jonathan Andrews always appeared as much concern'd about being discover'd as the others.
[signed] John Newbegin
[Verification omitted.]
And the said Newbegin being asked if he saw Amos Andrews pay any money to get Burbank out of Gaol, answers that he did not, but that he went to Amos Andrews and asked him to pay it, and said Amos say'd he had not the money then but he would get it and pay it shortly.—and some time afterwards said Andrews told him he had paid it.
[signed] Att. Sam Winthrop Cler.
1. 19 Jan. 1773, SF 139645. Signed by the deponent. Note that this deposition and the one that follows were also “Sworn in Court” at the action of review in July 1774, indicating that the deponent took the stand and reaffirmed the substance of his testimony.
2. Presumably this refers to the Crown and not to the plaintiff.

Docno: ADMS-05-01-02-0003-0002-0010

Author: Wingate, Jonathan
Date: 1773-06-16

Deposition of Jonathan Wingate1

16 June 1773
I Jonathan Wingate of lawful age testify and say that about eight or ten days before Mr. Richard Kings house and shop were broken open in March 1766 I was in a Shoemaker's shop belonging to one Hodgdon not thirty rods from my own house when Amos Andrews came into said shop and soon of his own motion began to discourse about the mobbing and riots that had lately happened in several parts of the province and then said the Mr. Richard King was reported to be a very bad man, took all advantages of people, was a near neighbour to him and he had found him very troublesome and he thought it would be a good scheme to mob him, and that it would do him good that such a thing had been talked of for some time in their road and he would join in it and he asked me if I would too; some days after this I was going by his door upon my private business. Seeing him standing at his door I stopped and we renewed the discourse on the same subject; which of us then began it I don't remember; but he then said it was a very good thing to pay Mr. King a visit and to mob him; that he might be made a better man by it, and said he would go, and again asked me if I would go too; he also desired me to speak to Mr. John Stewart to ask his advice about it as I was then to go by his house about my business I accordingly went into Mr. Stewart's house and coming out of it I met him coming in I then related to him what had { 126 } passed between Mr. Andrews and me about Mobbing Mr. King as aforesaid; and that Mr. Andrews had desired me to talk with him about it; and I then asked him whether he thought it was best to do it; to which he replied with earnestness yes by all means; which I think he repeated. In my way home from Mr. Amos Andrews to Mr. Stewarts I called at Jonathan Andrews' Shop with whom I conversed on the same subject but do not remember which of us began the conversation; he said it would be a good thing to pay Mr. King a visit and that he might be made a better man by it. I have frequently conversed with the above three persons about the riot at Mr. King's house, since, and they have frequently expressed their approbation of and satisfaction in what had been done; and said Stewart and Amos Andrews declared they would stand by it and every one would be a fool that would not and from conversation with said Jonathan I have no doubt but he was of the same mind. Said Stewart and Amos Andrews have to my Knowledge used their endeavours by persuasions to prevent any persons from being witnesses for Mr. King and making discovery of any persons concerned and declared that nothing would be too bad for any one that should. And Amos Andrews told me he was to be and should have been present himself at the Riot, but was prevented by the Colic or the Belly Ach.
[signed] Jona. Wingate
[Verification omitted.]
[signed] Att. Sam Winthrop Cler.
1. 16 June 1773. SF 139645. Signed by the deponent.

Docno: ADMS-05-01-02-0003-0002-0011

Author: Stewart, John
Recipient: King, Richard
Date: 1766-04

Threatening Letter Sent to King1

ca. April 1766
In Considiration whar of a number of the Suns of liburty have Shun a mordrit resment [i.e. resentment] for the repeted abus which they have reseved for many yers past Do herby hartily Signyfy to the Said Riched. King that in Cas the Said riched or any Other parson Within the Couty should us greet or menthen or be insterimental of any Warants or Summen's to be Sarvd on any Pasen or Pasens he ma Depend onit that he not onley will have houses and barnes burnt and Consumed but him Self Cut in Peses and burnt To Ashes we also think it best for him to Submit to Provadences, and behave beter for the futer and think him Self wel yoused.2
1. The original, on which the handwriting test was conducted, is in SF 139590, marked in another hand: “Produced by Mr. King.” For the dating, see Doc. II.
2. Stewart apparently introduced evidence to discredit this document, because SF 139590 contains a sample of his handwriting marked, in another hand, “Produced by Mr. Stuart.”
{ [facing 126] } { [facing 127] }

Docno: ADMS-05-01-02-0003-0002-0012

Author: King, Richard
Date: 1774-05-27

King's Offer of Settlement1

27 May 1774
Richard King To those Imediately Consirned in his action of review against them Depending &c. and any others that the matter of that action may Consern
I am Sensable that when a man has Entered the field in order to do him Selfe Justice against those from whom he has receved an Injury then To offer Terms to his adversary is often Constered a weakness of mind, or want of abillity, notwithstand[ing] its being hild fourth in the highest authority as a Duty. But well knowing that you must be Sensable that the Witnesses produced on the former Tryall are produced again (if no other) and that their Evidence alone would have ben Sufficiant in point of Proof, Even had not a duty of the [highest?] Authority Indused Two of you to make a Confession (partial as it was) Sufficiant for my purpous.—Matters standing thus I think it Safe Honourable and frindly to acquaint you that I now stand ready to accept of a much less Sum then the damages and Charges I have sustained amounts to rather then put my Selfe to further Cost to Effect the future [ . . . ] of [ . . . ] and that upon proper Security Given for such Sum as may be agreed on. Time also shall be given upon simple Intrest for the payment thereof; If I have no answer within Seven days I shall Take it for granted you Treat this as a waist paper, and hold my Selfe at liberty to do the Same. Yours,
[signed] Richd. King
1. FC, in King's hand and signed by him. NHi:Rufus King MSS. Perhaps in response to this appeal, the three Stewarts defaulted. Min. Bk. 99, SCJ Cumberland and Lincoln, June 1774, N–4, N–6. See the beginning of Doc. XIII below. See also note 3 above.

Docno: ADMS-05-01-02-0003-0002-0013

Author: Sayward, Jonathan
Date: 1774-06-29

Deposition of Jonathan Sayward1

29 June 1774
Jonathan Sayward of York in Said County of York, Esqr. Testifys and Says that He very well knew Josiah Beal who <lately> some years Since was an Inhabitant of the Town of York, but now if liveing re• { 128 } sides in some part of Novaskhotia Government as the Deponent Supposes That he was in poor circumstances with respect to Substance when he left York, which is 8 or 10 year ago, and He has never heard that He said Beal has since his remove from York mended his Worldly circumstances.
[signed] Jonathan Sayward
Querys put by Mr. King,
Do you Know that Josiah Beal has now any Estate Real or personal in the Town of York?
Answer. The deponent says He does not Know that He Has, any, or that He has not.
Have you heard that said Beal has a grant of two Thousand acres of land in Novascotia Government?2
Answer The Deponent has no remembrance that he has ever heard of such a Grant of land to said Beal.
[Verification omitted.]
1. York, 29 June 1774, SF 139645. In a clerk's hand, signed by Sayward. Presumably “Deacon” Jonathan Sayward, a loyalist sympathizer, who retained his power in the community after the Revolution. See 1 Adams Family Correspondence111 note. Sayward had earlier refused an offer of preferment for fear of the Sons of Liberty; see Sayward to Thomas Hutchinson, 22 Aug. 1769, 26 Mass. Arch. 328.
2. King seems to have been trying to bring out that Beal had been bribed by the defendants to leave the Province. Beal was probably one of the rioters; his note of hand for £139/12/1 had been among those destroyed. SF 139590.

Docno: ADMS-05-01-02-0003-0002-0014

Author: Adams, John
Date: 1774-07

Adams' Minutes of the Review1

Cumberland Superior Court, Falmouth, July 1774
King vs. Stewart—Review
3 Stewarts defaulted. 3 Andrews appear. By the Sullivans.3
Silas Burbank. About 10 days before the Affair, I was informed that a Number of Persons from 2 Roads, were about making an Onset on Mr. Kings House. Stewarts and Andrews's were joined in it. I was coming down by Amos Andross's House. He asked me if there were not a Number about making Sir Richard a Visit. He said he should { 129 } go, and thought he deservd a good Whipping and to have his Ears cutt of, because he had treated him ill and others. This was the Afternoon before the Affair happened. He said K[ing] had kill'd these Creatures &c. and he deserved to be checked and corrected. He advised me to go, thought it was proper for me to go, and others. He has wrongd me and is endeavouring to wrong you and he will ruin us all if not humbled. It will be for our good and for his. There was one Person there, I believe to whom he gave a strong Encouragement to go. I know there was one. He said twice he would absolutely go. Afterwards he said he did not go, because he was taken with a bad Belly Ach. He said he was as good a Friend and or Well wisher or both, as any that was there.
Some nights before the Church Meeting A. Andross told me the Belly Ach was relentment of Mind that he had encouraged so bad a Thing. About the same Time, the day before saw Jona, Andross senr. Said he believd he should not go, but believ'd his son would. It would be the best Way for Somebody to go, and whip him with small sticks, as he was weak and frail in Body. Jona. mentioned a great many bad Things that K. had done—killing Creatures, and would drive the poor People away, if not checked. A Person that he advised and encouraged to go, did go. Something was mentiond about the Stamp Act, this was Amos, that King was a favourer of it.
Jona. Andrews Jnr. was in the Affair. I first saw the Party in the Road near my House near a mile and an half. Jona. Jnr. was in the Company, near and at Kings House. He went from near my House with the Company to K's House, in the night. He said he did not know whether his father would come. Dont know that I saw him in K's House, but saw him after the Affair was over with the Company at the Meeting House.
Several Windows were broke.
The Person I mention, I am inclin'd to think, would not have gone if he had not been encouraged by Men of Estates and Character.
Neither Amos nor Jona. advised to breaking the Windows, stealing Papers breaking Desks, to cut down the House or burn the Barn. It was proposd that night to go and take him out of his House, and whip him.
I know there was a Number of Papers destroyed. Bonds, Notes, Deeds, a great Number burnt in his House upon the Hearth and others thrown out of Doors. Many torn to Pieces, Bills of Parcells &c. dont know the Names, Dates, nor Sums. Jona. Jnr. was present and saw many of em burnt.
{ 130 }
Jona. Wingate. 8 or 10 days before, at Hodgdons shop, Amos Andross came in and talk'd about the Riots in the Prov[ince] and said he thought it would be a very good Thing to make Mr. King a visit and to mob him and that he ought to be mobbed. A few days after, I saw him by his House, and he said he thought it would be a very good Thing, and said he would go. After the Riot, he told me he should have been there but for the Belly Ach. He spoke very encouraging, and said it was a good Thing. When I was going by his House, he said he would have me go and see Mr. Stewart and take his Advice about it. I did and Stewart advised to it.
I knew of a Person that he advised, who was in the Mobb.
I call'd at Jona. Andross's. Cant tell who begun. He reckoned it would be a good Thing to make Mr. King a Visit.
Windows were broke, and Papers destroyd. Papers were burnt. Near 20 People at the House. After 9 O Clock.
John Newbegin. Saw K's House next Day. It was very much damnified. Jona. Andross Jnr. was There and he told me he was in the House. I never heard of it till the Night before. I was asked, by one Person the Night before to go.
One Note vs. D. Millikin was destroyd and several vs. the Stewarts and deeds and all the Papers there were destroyed.
Heard Amos say he was prevented from going by the belly Ach. He said he never would be behindhand in Advancing Mony, to screen it. And he has advanced Money. He really appeard to me to be very glad.
Jona. appeared to be well pleased with the Notion, and Jona. Junior was there. Did not hear Jona. say any Thing about it beforehand. He afterwards laugh'd and was merry about it.
A Year or two after I heard Jona. say, that it was a bad Thing.
The House, Windows, Desk, Wainscot, Walls, Pewter damagd. About a Year after Amos said he could take a few Bundles of flax and a Coal of fire and put under his Warehouse, and put a stop. Have heard Amos laugh about the Ladder that they could not get it together. 2 Men and one want willing, it was difficult.
Benja. Carl. The Talk was that about 70 men were to go and talk with him and tell him that he had said he would fill Falmouth Goal with Debtors next C[our]t. 20 or 30 did assemble. 6 went into the Windows. A desperate Outcry in the House. Heard Mr. K. cry to his servant.
I saw a Peck of Papers or more. I said it is a Pity to destroy these Papers. They said they had got what they wanted. I said are not you { 131 } a Parcell of ungratefull Writches. Burbank came to me. Cant tell who burnt the Papers. Burnt at Burbanks House.
Such a Noise in the House as I never heard in my House.5 Jona. Andross Jnr. was one of the Company. Thumping, Yelling, Hooping —I thought K. was in the Extremity of Death.
3 Stewarts there.
Jona. Junr. proposed the whole Parish should go to the Justices, and let him take whom he pleased. There was some Meeting for that, at old Mr. Stewarts.
Nat. Jose. Met Amos Andross, and we got discoursing about the Mob which had been at K's. I said I was glad ont. Amos said if we had thought so We should have invited you to have gone [with] us. K. had my Note and I hoped mine was destroyed.
Nath. Carl. At Amos's Mill, he said to me, how easy a Thing it would be for a youngster that lived as near as I, to put a Coal of Fire to his Buildings. This after the Riot but before the Barn was burnt. He did not seem to me to be in earnest.
Paul Tompson. Heard Jona. say the best Way for K to find who had mobb'd him is to go to his Books and see who he has wrong'd. He has wrongd me out of 300£. He mentiond Graffam, but did not understand him to quote Graffam.
Lem. Millikin. K. sent to my Fathers just after the Mobb, and desird sum of Us to come. A large Quantity of Papers burnt to Ashes. K. answered they have undone me [then?] Mrs. K. was then fainted away, could but just keep Life in her. She lay in.
Windows of House and Store dashd all to Pieces. An Hatchet thrown into a Chamber Window and lying on the Flooer. His Desks broke to Pieces, his Wainscoat, Plaistering &c. broke to Pieces.
Rob. 1st. I knew was the Windows coming in. Master called to me, and went back into his Chamber. I attempted to go, but the People were there, and I could not go. I went to my Gun, and she was not loaded. I said I would stop some of them. I met Master coming down to get something for Mistress. She was faint. He bid me go and get his Gun. I went and went up Chamber and found the Maid holding Mistress who was faint. Plate, Earthen Ware, Chairs, Desks, broke, Papers burnt. Stair Case hacked, Wainscot Wall hacked. 7 or 8 Windows. They broke into the shop. Window broke open.
Mistress said Lord of Mercy where shall I go?
John Porry. Some days after the Mob at Mr. Andross's Jona.'s. Saw Mill, he said he was not in it, but if there was ever another he would { 132 } be in it. For it was justifiable in the sight of God and Man. The Common Law could not take hold of a Mob. If he6 man was injured and could not get his Remedy at common law, he might take it himself.
John Augur Millikin. April at Millikins Tavern 10 o Clock at Night. Saw the Barn burnt. Ladder was to Pieces. Amos Andrews at the other End. The Ladder would fly to Pieces 10 times—as if by Witchcraft.
Somebody ripd the Boards off at the End, and let the Air in.
Jona. said he believd the D———1 was in the People.
Abraham Tyler Junr. Cost about £80 to repair what has been done. £10 L.M. to repair the Wainscoat, and staircase.
Daniel Moulton. Saw the House and Furniture.
Schedule of Notes, Bonds, &c. annexed to the Writ.
Hawk. P.C. 315. No Accessories in Trespass. §16. Hire, Command, Council or Conspiracy. Approbation unless they countermand and retract their Encouragement.7
King vs. Stewart et al. Defence
James Sullivan, for Amos Andrews.
Abhors Mobs.
Wingates Deposition. Taking K. out of Bed and Whipping him or cutting his Ears is not cutting his Ears.
Law of Evid. 254.8 All must be Principals. None guilty but he who Acts in it.
Hawk. 311. § 4.9 Woods Inst. 407.10 4. Bac. 179, top.11 Foster 372, 369. 70.12 372. §1.2. 3.13 Hawk. 310.14
{ 133 }
Omnis Ratohabitio retrotrahitur, and Mandato precedenti antecedenti aequiparatur.15
No Intention to break House or burn Papers, in Amos.
{ 134 }
The Ladder. The axes, and Presence when the Colt hung up.
Depositions to be treated with more care, because taken when Amos not present.16
The whole 12 Jurors must agree.17
Damages. A melancholly Tragedy. Pewter, China, &c.
Fright. Pain of Mind for 1/4 of an Hour.
Prov[ince] in an Uproar, on Account of Stampd Papers.
Shall Amos and family be beggared, and reduced to Distress for Life.
John. Sullivan. J. Hale said it was difficult to distinguish between Crime and Person.18
No Damages to make Reparation to the Public.
The Thought of killing sovereign is Treason.
Ever and Never in Gilbert.19
{ 135 }
Hawk. 311.20
The Evidence comes from Persons who were original Defendants. Burbank was Captain General.—Answer. The Andrewss were King and Ministry and Privy Council.21
Page 316. Read§22d22
Defendants Witnesses.
D[eaco]n Millikin. Heard Wingate threaten to mob Millikin23 6 Months before it was done. If I could perswade any Body to join me, I would mob him immediately.
Ben Durgan. Neither of the Defendants there when the Colt hung up. In the Night I saw nor heard any thing of them. Dark overcast night. Jona. was at home when the House was torn down.
John Gookin. King told me, as I understood him, he lost nothing of any Value. His Books, Bonds and Notes were all safe. Waste Papers destroyed. If they had put their Hands round they would have ruined him. Principal Part of the Papers they took were waste Papers and Memorandums. Dont remember his saying about the desk in the House. All in Confusion.
James Boothbay. Had a Note there not destroyd, King Joked.
Jotham Libby. Paid his Note.
Mr. Graffam. The best Notes were in the draw which they never touched.
Dr. Southgate. Saw Dr. Southgate. Gookin told me that they { 136 } destroyed a valuable Number of Papers and sustained a very great Loss, and he should have been ruined, if they had not missed a valuable File of capital Notes.
John Sullivan. What is the meaning of Mobbing. There was not one Thing done that Jona. advised to. Dont urge that mobs being in other Places, is any Justification.
There is Evidence that Jonathan Junr. was with the rest.
Under c[ommon] l[aw] a Person wants understanding, to make him guilty of a Crime.
3 Bac.24
The Stewarts have confessed themselves guilty, by their Default.25
People was divided about the Destruction of the Tea.
Jona. has pd. a sixth Part of £200 which should be returned to him Exemplary Damages, not known to the Legislators.26
1. Damage to the House. 2. Furniture. 3. Papers. 4. Credit in Trade. 5. To his Character. 6. Indignity. 7. Children. 8. Wife. 9. The Terror, Cruelty and Horror of that dismal Scene. 10. Consider what the Crime was and what King might have done. He might have killed em all and been justified.27
1. To the House.
2. To the Furniture.
3. The Papers.
4. To his Credit in Trade.
5. To his Reputation and Character in generall. Such popular Hurricanes always scatter Dust upon a Man. They make the World suspect very often where there is no just Cause or Ground for Jealousy. The Maxim with many is that where there is so much Smoke there is always some fire, and under the Influence of this Opinion they take up a Prejudice vs. a Man with[out] exam[in]ing into the Truth. These popular Commotions always set ill humours afloat. They put { 137 } licentious Tongues and Pens in Motion, as they did particularly in this Case. These Andross's hired a Paper to be printed even in a Newspaper and to be scatterd also in Hand Bills, to asperse and blacken his Character. Every Man has Enemies. Every Enemy takes Advantage of such a season, and becomes industrious to propagate Reports true or false, to the Injury of a Man's Character. Besides every one of the Persons who is concerned in such an Outrage has a Number of Friends, who are at once alarmed, and become anxious least the Perpetrators should be discoverd and punished, and least the World should condemn the Action as unjust. These therefore instantly join the Cry, and say in all Companies the most bitter, cruel, and often false and deceitfull Things they can think of. In short I know of nothing that happens in society which is such a Nursery of Scandal, and Calumny, of obloqui and Defamation as a Mob. Besides it is such a Gratification to the Envy and Revenge, of the most sordid, base and groveling among the Vulgar, that it gives them a Triumph and they always become insolent, impudent, and abusive to such a Man—swallow down greedily all the Lyes and dirty Tales that are told and propagate them far and wide.
Apply this to Mr. King and to those Rioters.
6. The Indignity offered to the Plaintiff. The Insult and Affront.
An Englishmans dwelling House is his Castle. The Law has erected a Fortification round it—and as every Man is Party to the Law, i.e. the Law is a Covenant of every Member of society with every other Member, therefore every Member of Society has entered into a solemn Covenant with every other that he shall enjoy in his own dwelling House as compleat a security, safety and Peace and Tranquility as if it was surrounded with Walls of Brass, with Ramparts and Palisadoes and defended with a Garrison and Artillery.—This covenant has been broken in a most outragious manner. We are all bound then to make good to the Plaintiff his Damages.
Every English[man] values himself exceedingly, he takes a Pride and he glories justly in that strong Protection, that sweet Security, that delightfull Tranquillity which the Laws have thus secured to him in his own House, especially in the Night. Now to deprive a Man of this Protection, this quiet and Security in the dead of Night, when himself and Family confiding in it are asleep, is treat[ing] him not like an Englishman not like a Freeman but like a Slave—like a miserable Turk, or Tartar. Is not this a base Affront? No Man who has a Soul, who has the Spirit of a Man in him can ever after during his whole Life, ever forget such an Indignity, tho he may forgive it. He can never { 138 } think of it without Pain of Mind, without Impatience, Anger, Resentment, Shame and Grief.
7. The Damages and Danger to his Children.
5 young Children, all suddenly awakend, by the Dashing of Glass, the Yells, and Noises. Sudden Terror it seems is dangerous to Children. We had the last Week at York Instances. A Gun—a rap.28 This Danger arises from the Constitution of all Animals. A Colt once thoroughly affrightened never gets over it. A sudden fright destroys the natural Tone and Vigour of the Nerves and turns the Animal Spirits into such Channells that they never can be brought back.
There is a natural Courage in Children, which once abated, and Habits of Fear fixed in their Minds, they never can be cured. Instances are common. Fill a Childs head with stories of Ghosts, Apparitions and Hobgoblins, and You fix such Habits of fear upon them, that all the force of their Reason shall never be able to make them walk in the dark without fear.
8. The Danger, the real Damage and actual Cruelty, to his amiable Wife. She was at that Time far gone in her Pregnancy. She run 1000 Chances of her Life, and still greater Risques of the fruit of her Body. What had the innocent Babe in her Womb done to this abandon'd Mob, that its Existence should be put at Hazard, by their Fury, Malice, Madness and Revenge.
9. The Cruelty the Terror, the Horror of the whole dismal scene. It would be affectation to attempt to exaggerate, it is almost impossible to exagerate, the distresses of this innocent Family, at that Time. The Excellency of a Tryal by Jury is that they are the Partys Peers, his equalls—men of like Passions, feelings, Imaginations and Understandings with him. If your Passions are not affected upon this Occa• { 139 } sion, you will [not] be the Plaintiffs Peers. It is right and fit, it is reasonable and just that you should feel as he did, that you should put yourself in his Place, and be moved with his Passions.29
Be pleased then to imagine yourselves each one for himself—in bed with his pregnant Wife, in the dead of Midnight, five Children also asleep, and all the servants. 3 Children in the same Chamber, two above. The Doors and Windows all barrd, bolted and locked—all asleep, suspecting nothing, harbouring no Malice, Envy or Revenge in your own Bosoms nor dreaming of any in your Neighbours. In the Darkness, the stillness the silence of Midnight.
All of a sudden, in an Instant, in a twinkling of an Eye, an armed Banditti of Felons, Thieves, Robbers, and Burglars, rush upon the House. Like Savages from the Wilderness, or like Legions from the Blackness of Darkness, they yell and Houl, they dash in all the Windows and enter. Enterd they Roar, they stamp, they Yell, they houl, they cutt break tear and burn all before them.
Do you see a tender and affectionate Husband, an amiable deserving Wife near her Time, 3 young Children, all in one Chamber, awakened all at once, ignorant what was the Cause, terrifyd, inquisitive to know it. The Husband attempting to run down stairs, his Wife, laying hold of his Arm, to stay him and sinking fainting dying away in his Arms. The Children crying and clinging round their Parents—father will they kill me—father save me! The other Children and servants in other Parts of the House, joining in the Cries of Distress.
What sum of Money Mr. Foreman would tempt you, to be Mr. King, and to let your Wife undergo what Mrs. King underwent, and your Children what theirs did for one Night?
I freely confess that the whole sum sued for would be no temptation to me, if there was no other Damage than this.30
But how can the Impression of it be erased out of his Mind and hers and the Childrens. It will lessen and frequently interrupt his Happiness as long as he lives, it will be a continual Sourse of Grief to him.
10. Such an Event establishes and perpetuates Rancour, Animosities and Hatreds among Families. One of these Children will never recollect <the> see one of the Family of Stewart and Andrews without Pain of Mind. Is it not a damage to a Man to have Quarells entailed { 140 } upon him and his Family, forever, with all his Neighbours and their Families.
11. It's of great Importance to the Community that sufficient that exemplary Damages should be given in such Cases. King might have kill'd em all.31 If a Man has Humanity enough, to refrain, he ought to be fully compensated.
12. It would be a stain of this excellent and noble Tryal by Jury, if it should not afford Justice in such Cases. There are Levellers, but they disgrace Jurys.
1. In JA's hand. Adams Papers, Microfilms, Reel No. 185.
2. Apparently a heading, but the meaning is uncertain; probably mobbing or rioting.
3. As to the default, see notes 3, 351, above. The Andrews' counsel were John and James Sullivan, New Hampshire and Maine lawyers respectively. See JA to AA, 29 June 1774, 1 Adams Family Correspondence 113.
4. Theophilus Bradbury, JA's co-counsel, opening the case for King.
5. Perhaps an inadvertence for “life.”
6. Inadvertence for “a.”
7. 2 Hawkins, Pleas of the Crown 315: “It seems to be agreed that those who by Hire, Command, Counsel, or Conspiracy; and it seems to be generally holden, that those who by shewing an express Liking, Approbation or Assent to another's felonious Design of Committing a Felony, abet and encourage him to commit it, but are so far absent when he actually commits it, that he could not be encouraged by the Hopes of any immediate Help or Assistance from them, are all of them accessories before the Fact, both to the Felony intended, and to all other Felonies which shall happen in and by the Execution of it, if they do not expressly retract and countermand their encouragement, before it is actually committed.”
8. Gilbert, Evidence 254: “In Trespass all the Defendants must be Principals, for no Man can by commanding a Trespass, give any Man Authority to do it, Therefore no Man is guilty but that he acts in it, and any other Person is not guilty at all.”
9. 2 Hawkins, Pleas of the Crown 311: “Sect. 4. It seems agreed, That who so ever agrees to a Trespass on Lands or Goods done to his Use, thereby becomes a Principal in it. But that no one can become a Principal in a Trespass on the Person of a Man by any such Agreement. Also it seems agreed, that no one shall be adjudged a Principal in any common Trespass, or inferior Crime of the like Nature, for barely receiving, comforting and concealing the Offender, though he know him to have been guilty, and that there is a Warrant out against him, which by Reason of such Concealment, cannot be executed. And if he cannot be punished as a Principal, it is certain that he cannot be punished as an Accessary; because in such Offences, all who are punished as Partakers of the Guilt of him who did the Fact, must be punished as Principals in it, or not at all.”
10. See Wood, Institute of the Laws of England 397 (London, 9th edn., 1763): “In Petit Larcenies, Trespasses Vi et armis, there are no Accessories. For as in the highest Offense there is no Accessory, so it is in the lowest Offenses, or in all Offenses under Felony, as in Riots, Routs, forcible Entries, and other Trespasses vi et Armis. Here all are Principals as before observed. He that Receiveth a Trespasser on Lands and Goods, after the Trespass is Committed, is no Trespasser, unless the Trespass was done to his Use and Benefit, and He agreeth to it afterwards; for then his subsequent Agreement amounteth to a Commandment, and makes him a Principal. Yet if the Trespass was on the Person of any one, such After-Agreement will not make Him a Trespasser.” Id. at 407, contains references to statutory measures concerning accessories.
11. Probably 5 Bacon, Abridgment 179: “All who are Parties to a Trespass with Force are liable to this Action; for there can be no Accessory in such Trespass.”
12. Foster, Crown Cases 372: “Did the Principal Commit the Felony He standeth Charged with under the Influence of the flagitious Advice, and was the Event in the ordinary Course of Things a probable Consequence of that Felony? or did He, following the Suggestions of his own wicked Heart, Wilfully and Knowingly commit a Felony of Another Kind or upon a Different Subject?”
13. Foster, Crown Cases 369–370: “Much hath been said by Writers who have gone before Me, upon Cases where a Person supposed to commit a Felony at the Instigation of Another hath gone beyond the Terms of such Instigation, or hath in the Execution varied from them. If the Principal totally and substantially varieth, if being solicited to commit a Felony of One kind He wilfully and knowingly committeth a Felony of Another, He will stand single in that Offence, and the Person soliciting will not be involved in his Guilt. For on his part it was no more than a fruitless ineffectual Temptation. The Fact cannot with any Propriety be said to have been Committed under the Influence of that Temptation.
“But if the Principal in Substance complieth with the Temptation, varying only in Circumstance of Time or Place, or in the Manner of Execution, in these Cases the Person solliciting to the Offence will, if Absent, be an Accessary Before the Fact, if Present a Principal. For the Substantial, the Criminal part of the Temptation, be it Advice, Command, or Hire, is complied with. A. Commandeth B. to Murder C. by Poison, B. doth it by a Sword, or other Weapon, or by any other Means. A. is Accessary to this Murder. For the Murder of C. was the Object principally in his Contemplation, and that is Effected.
“So where the Principal goeth beyond the Terms of the Solicitation, if in the Event the Felony committed was a probable Consequence of what was Ordered or Advised, the Person giving such Orders or Advice will be an Accessary to that Felony. A. upon some Affront given by B. ordereth his Servant to way-lay Him and give Him a sound Beating; the Servant doth so, and B. dieth of this Beating. A. is Accessary to this Murder.
A. adviseth B. to Rob C., He doth Rob him, and in so doing, either upon Resistance made, or to conceal the Fact, or upon any other Motive operating at the Time of the Robbery, Killeth him. A. is Accessary to this Murder.
“Or A. soliciteth B. to Burn the House of C., He doth it; and the Flames taking hold of the House of D. that likewise is Burnt. A. is Accessary to the Burning of this Latter House.
“These Cases are all governed by One and the Same Principle. The Advice, Solicitation, or Orders in Substance were pursued, and were extremely flagitious on the Part of A. The Events, though possibly falling out beyond his original Intention, were in the ordinary Course of Things the probable Consequences of what B. did under the Influence, and at the Instigation of A. And therefore in the Justice of the Law He is answerable for them.”
14. 2 Hawkins, Pleas of the Crown 310–311: “It seems to have been always an uncontroverted Maxim, that there can be no Accessaries in High Treason, or Trespass. Also it seems to have been always agreed, That whatsoever will make a Man an Accessary before in Felony, will make him a Principal in High Treason and Trespass; as Battery, Riot, Rout, Forcible Entry, and even in Forgery and Petit Larceny. And therefore, where-ever a Man commands another to commit a Trespass, who afterwards commits it in Pursuance of such Command, he seems by necessary Consequence to be as guilty of it, as if he had done it himself; from whence it follows, that being in Judgment of Law a Principal Offender, he may be tried and found Guilty, before any Trial of the Person who actually did the Fact.”
15. Presumably, “Omnis ratihabitio retrotrahitur et mandato priori aequiparatur,” i.e., “Every ratification relates back and is equivalent to a prior authority.” Black, Law Dictionary. If the point is that Amos' subsequent approval of the riot which he had encouraged constituted participation, the maxim would appear to have been a note by JA of a possible rebuttal argument to Sullivan's preceding citation of authority.
16. Note that depositions were admissible, even though taken out of the presence of the opposing party, if he had been notified or lived more than twenty miles away. Act of 12 Dec. 1695, c.15, §1, A&R 225.
17. “The Jury must be kept together without Meat, Drink, Fire or Candle, till they are agreed. ... If there be eleven agreed, and but one dissenting, who says he will rather die in Prison, yet the Verdict shall not be taken by eleven. ...” 3 Bacon, Abridgment 269.
18. Presumably Sullivan refers to Hale, Pleas of the Crown. The reference has not been identified.
19. Probably Gilbert, Evidence 255: “and in Trespass, the Intent to trespass was ever reckoned a Trespass, and therefore there are no Accessories.” JA's minute suggests that Sullivan was arguing that the word “ever” should be “never.” See quotation at note 458 above. But in Gilbert, Evidence 255 (2d edn., 1760), the passage is reprinted without change.
20. See note 469 above.
21. This phrase is apparently a rejoinder noted down by JA for use in rebuttal.
22. 2 Hawkins, Pleas of the Crown 316–317: “But it is observable, That Plowden, in his Report of Saunder's Case, which seems to be the chief Foundation of what is said by others concerning these Points, in putting the Case of a Command to burn the House of A. which shall not make the Commander an Accessary to the burning the house of B. unless it were caused by burning that of A. states in this Manner, If I command a Man to burn the House of such an one, which he well knows, and he burn the House of another, there I shall not be Accessary, because it is another distinct Thing, to which I did not give Assent, &c. By which it seems to be implied, That it is a necessary Ingredient in such a Case to make B. no Accessary, that he knew the House which he was commanded to burn; for if he did not know it, but mistook another for it, and intending only to burn the House which he was commanded to burn, happen by such Mistake to burn the other, it may probably be argued, That the Commander ought to be esteemed an Accessary to such Burning, because it was the direct and immediate Effect of an Act wholly influenced by his Command, and intended to have pursued it.”
23. An apparent inadvertence. See Dr. Southgate's testimony below for a similar error.
24. 3 Bacon, Abridgment. The exact citation has not been identified.
25. Sullivan was reminding the jury that even if it brought in a verdict for the Andrewses King could still mulct the Stewarts in damages.
26. “Exemplary damages,” or “smart money,” are damages over and above the plaintiff's actual loss, in circumstances aggravated by the defendant's malice. Black, Law Dictionary.
27. These are notes for JA's closing address to the jury, which follows and may have been written during a recess in the trial or possibly afterwards in the heat of fresh recollection.
28. See JA to AA, York, 1 July 1774, 1 Adams Family Correspondence 118:
“In a Tryal of a Cause here to Day, some Facts were mentioned, which are worth writing to you. It was sworn, by Dr. Lyman [Isaac Lyman, Yale 1747; see 12 Sibley-Shipton, Harvard Graduates 182], Elder Bradbury and others, that there had been a Number of Instances in this Town of fatal Accidents, happening from sudden Noises striking the Ears of Babes and young Children. A Gun was fired near one Child, as likely as any; the Child fell immediately into fits, which impaired his Reason, and is still living an Ideot. Another Child was sitting on a Chamber floor. A Man rapped suddenly and violently on the Boards which made the floor under the Child [tremble?]. The Child was so startled, and frightened, that it fell into fits, which never were cured.
“This may suggest a Caution to keep Children from sudden Frights and surprizes.”
The case referred to is probably Moulton v. Swett, SCJ Rec. 1773–1774, fol. 219; Min. Bk. 99, SCJ York, June 1774, N–6; SF 137483. Moulton was a constable who had taken Swett's gun away from him after Swett had wrongfully discharged it. Swett sued, but lost in the Superior Court. Unfortunately the file does not list the Superior Court witnesses.
29. It would be questionable today for a lawyer so to address a jury. See Callaghan v. A. Lague Express, 298 F. 2d 349 (2d Cir. 1962). JA may have based the next three paragraphs on King's own account, p. 119 above.
30. In this and the preceding paragraph JA seems to exceed the bounds of permissible argument. See note 6629 above.
31. Compare with the argument in Rex v. Richardson, No. 59.

Docno: ADMS-05-01-02-0003-0002-0015

Author: Adams, John
Recipient: Adams, Abigail
Date: 1774-07-07

John Adams to Abigail Adams1

Falmouth, 7 July 1774
I am engaged in a famous Cause: The Cause of King, of Scarborough vs. a Mob, that broke into his House, and rifled his Papers, and terrifyed him, his Wife, Children and Servants in the Night. The Terror, and Distress, the Distraction and Horror of this Family cannot be described by Words or painted upon Canvass. It is enough to move a Statue, to melt an Heart of Stone, to read the Story. A Mind susceptible of the Feelings of Humanity, an Heart which can be touch'd with Sensibi[li]ty for human Misery and Wretchedness, must reluct, must burn with Resentment and Indignation, at such outragious Injuries. These private Mobs, I do and will detest. If Popular Commotions can be justifyed, in Opposition to Attacks upon the Constitution, it can be only when Fundamentals are invaded, nor then unless for absolute Necessity and with great Caution. But these Tarrings and Featherings, these breaking open Houses by rude and insolent Rabbles, in Resentment for private Wrongs or in pursuance of private Prejudices and Passions, must be discountenanced, cannot be even excused upon any Principle which can be entertained by a good Citizen—a worthy Member of Society.

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

Editorial Note

This suit, as Adams noted in his diary, “arose from Ambition”1 and (apparently) from competition for the favors of the voters of Sandwich. Rowland Cotton, the town's representative in the General Court since 1758, had lost his seat to Stephen Nye in 1761, but had then obtained the sinecure of Clerk of the House of Representatives.2
In February 1763, Nye presented a petition to the General Court on behalf of “Jabez Joseph, Indian Man of Plymouth Setting forth That he served as a Soldier ... at Crown Point in 1761, and that in his way home he froze both his feet, and lost part of both, so that he is like to be a Cripple all his days, And Praying an Allowance.” The court voted a total of £4 to be paid to Nye “to be by him delivered to Mr. Elisha Tupper for the use of” Joseph. In addition Tupper, who had apparently been Joseph's master, was to receive £4 annually for three years, if Joseph lived so long, for Joseph's use.3
In the summer of 1763, Cotton appears to have “presented a Memorial to the General Court ... suggesting ... a mistake” in the grant of the pension because of the court's “supposing the said Jabez to be a legally mustered Soldier when probibelly he was not so.”4 The court then appointed John Murray of Rutland and Thomas Foster of Plymouth to investigate the matter. Nye told the committee that Cotton had obtained an order from Joseph's master to receive Joseph's wages from the Province Treasurer. When Cotton denied this, Nye said that he had seen in the Treasurer's office not only the order but also Cotton's receipt for the wages. The Treasurer, however, supported Cotton, and certified to the committee that Nye's declaration was “altogether false and Groundless.”5 The committee then reported in Cotton's favor.
According to depositions in the file, Nye accused Cotton of reading the committee's report to a group in a Boston or Cambridge barbershop and then taking it to the General Court where the Speaker read it aloud. Early in January 1767 Cotton invited Nye to call a general town meeting, “that the Inhabitants thereof might judge of the Difference between Them.” Nye failed to accept the invitation, and on January 12, before a group of townsmen at Nathaniel Bassett's blacksmith shop in Sandwich, told Cotton: “That is a false, lying paper which you made yourself and forged the Committee's name to it.”6
{ 142 }
Cotton, represented by Paine, thereupon commenced an action for slander in the Barnstable Inferior Court which Adams defended on Nye's behalf. The cause was tried on 7 April 1767, and after the jury found for Cotton in the sum of twenty shillings and costs,7 both parties appealed to the Barnstable Superior Court.
There, on 14 May 1767, the case came on anew. After trial, the jury brought in a general verdict for Cotton for £7 and costs, and Nye's motion in arrest of judgment, argued at Boston in August 1767, was overruled.8 Admitting that Nye had uttered the words, Adams had sought to argue that they were not actionable. The notes set out below suggest that his point was technical: the act of which Nye accused Cotton not being criminal, plaintiff could not recover without a showing of special (i.e. provable) damages. It is not clear whether this argument, which found considerable support in the authorities which Adams collected,9 was addressed to the court as well as to the jury. Adams' diary entry (Document VII) shows that he attempted vainly to argue the question to the jury. His minutes (Document V) show that the court unanimously upheld the actionability of the words. It cannot be determined whether the judges gave this ruling as part of the usual seriatim charge; whether they intended it as a determination binding the jury, as in the English criminal libel practice; or whether the ruling was made upon the motion in arrest of judgment.10
There are four separate Adams minutes or notes for this case (Documents II, IV, V, VI). Their exact dating is uncertain, but the present arrangement is supported by Paine's dated minutes of the Inferior Court proceedings (Document III).
2. Resolve of 22 Feb. 1762, 17 A&R 160.
3. Resolve of 16 Feb. 1763, 17 A&R 349.
4. Declaration, SF 144208.
5. Certificate (copy), SF 144208.
6. Depositions of Nathaniel Bassett, John Jennings, and Thomas Clapp; Declaration, Cotton v. Nye, SF 144208.
7. Inferior Court record, Barnstable, April 1767 (extract copy), SF 144208.
8. SCJ Rec. 1766–1767, fols. 228–229; Min. Bk. 82, SCJ Barnstable, May 1767, N–2. As to the motion, see the file wrapper and bill of costs. SF 144208.
9. See 8 Holdsworth, History of English Law 353–356, which discusses the practice whereby 17th-century judges sought to discourage actions for slander by holding that “in these actions the words complained of must be construed not in their natural sense, but, whenever possible, in 'mitiore sensu.' That is, they must be held not to be defamatory if a non-defamatory sense could be twisted out of them.” Id. at 355.
10. As to criminal libel and instructions to the jury generally, see No. 12. The motion in arrest of judgment was a means of attacking the legal sufficiency of the declaration after verdict, as on a demurrer. See Sutton, Personal Actions 129–131. Compare William Sheppard, Actions upon the Case for Slander 275 (London, 2d edn., 1674). If the court chose to regard actionability as matter of law only, it could overturn the jury's finding by this device. Few examples of the motion have been found in Massachusetts. Its use here and in No. 36, another defamation action, suggests that the independence of Massachusetts juries may have given it a special utility in such cases. See No. 36, note 7.

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

Author: Adams, John
Date: 1767-04-04

Adams' Diary1

4 April 1767
Poor Nye of Sandwich, seems dejected. I should suspect by his Concern that Cotton gained Ground vs. him. He seems to be hipp'd.2 It fretts and worries and mortifies him. He cant sleep a Nights. His Health is infirm.
Cotton is insane, wild. His Proposal of giving his House and Farm at Sandwich to the Province is a Proof of Insanity.... His sitting down at the Council Table with his Hat on and Calling for his Deed and a Justice to acknowledge it when the Council was sitting.
Cottons Method of Getting Papers Signed by Members, in order to demolish poor Nye is new. The Certificate from Murray and Foster if genuine is a mean, scandalous Thing. It was mean in Murray and Foster to sign that Paper. For one Rep[resentative] to give a Constituent a Weapon to demolish another Rep., is ungentlemanlike.
2. “To affect with hypochondria, to render low-spirited.” OED.

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

Author: Adams, John
Date: 1767-04

Adams' Minutes of the Trial1

Barnstable Inferior Court, April 1767
Cotton vs. Nye
Hovey.2 Certificate.3
Benja. Fessenden. Bassetts Shop. Lying Papers. Set their Names to it.
D[eaco]n. Forster. Signd the Certificate,4 &c.
Dr. Smith. Cotton said in Barbers Shop that he had a Certificate from Com[mittee] to prove Nye a Lyar. Understood that it was agreed5 and to be destroyd.
{ 144 }
John Jennings. False lying Paper, which you made yourself, and forgd their Names to it.6
Prince Tupper. A False lying Paper. Had stolen it or forgd it. Might as well do it as to put Turners Name to it. Annual Meeting, had been reading several Papers.
Nathl. Bassett. Cotton said he had read a Certificate about Nyes lying.7
Mathias Ellis. Whether he stole that, or made another just like it he could not tell.8
Nehemiah Webb. Made out of his own Head. Had stolen it or forged it, as he did some other. Mr. Spooners Name.
Paine. Wherever Words tend to the slander of a Mans Reputation I shall be for maintaining an Action to preserve the Peace.9
Court of Law a substitute in the Place of Passion.
1. In JA's hand. Adams Papers, Microfilms, Reel No. 185. The dating is based on similarity with Paine's minutes (Doc. III).
2. The position of this name in the MS and the Minute Book entry suggest that James Hovey was not of counsel and that his name appears inadvertently or inexplicably.
3. “Deft, objects to it, there ought to be an Attestation of the Clerk of the House. The committee have no right to sign.” Paine Law Notes, Barnstable Inferior Court, April 1767. See note 1note 22 below.
4. Deacon Thomas Foster was a Justice of the quorum and of Plymouth Inferior Court. Whitmore, Mass. Civil List 142, 96.
5. That is, the dispute was settled.
6. Jennings' deposition, to which he also swore in the Barnstable Superior Court, 14 May 1767, is in the file. SF 144208.
7. See to this effect deposition of Thomas Clapp. SF 144208.
8. Ellis' deposition, sworn to in the Barnstable Superior Court, 14 May 1767, is in the file. It contains the exact wording here set out. SF 144208.
9. See 4 Bacon, Abridgment 506: “and per Holt Ch. J. 'It is not worthwhile to be very learned on this point [i.e., the rule of mitiore sensu discussed in note 9 above]; for, wherever Words tend to slander a Man and to take away his Reputation, I shall be for supporting Actions for them for the Preservation of Peace,'” citing Baker v. Pierce, 2 Ld. Raym. 959, 960, 92 Eng. Rep. 139, 140; 6 Mod. 23, 24, 87 Eng. Rep. 787, 788 (K.B. 1704).

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

Author: Paine, Robert Treat
Date: 1767-04

Paine's Minutes of the Argument1

Barnstable Inferior Court, April 1767
It may be part of a great plan to get Representat[ion over?] that Paper.
It is true he made the Story for he drew it up.
Plaintiff put in memorial to cross Col. Cotton.2
The Committee had no business to sign said Certificate.
The design of the Paper was to fix a Lye upon Nye and was a parlimentary paper.
“A lying Paper,” no Slander.
{ 145 }
This was not Forgery. 485 Bac. 4.3 HPC 1854
The House [of] Repres[entatives] would have votd he was crazy. Cotton's Character is not so imaculate.
1. Paine Law Notes, Barnstable Inferior Court, April 1767. A portion of Paine's minute has been omitted because of its similarity to JA's (Doc. II). See note 153 above.
2. The sentence is clear in the MS, but makes no sense as it stands because Cotton was the plaintiff and had submitted the memorial.
3. See note 272 below.
4. See note 4015 below.

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

Author: Adams, John
Date: 1767-05

Adams' Notes of Authorities1

Barnstable Superior Court, May 1767
Cotton vs. Nye
4. Bac. 485. “All Words are actionable which import the Charge of such a Forgery, as is within any of the statutes against this offence.”2
“An action also lies for charging a Man with Forgery, although it is not said to be of such a Record, Deed, Writing, or Instrument as is within any of the statutes; for Forgery is an offence indictable and punishable at common Law.”3
“But no Action lies for saying of J.S. he hath forged the Hand of J.N., these Words being too general; for unless it had been said to what Deed or Instrument, this is no offence under any of the statutes or at Common Law.”4
1. Roll. Abr. 66. Pudsey and Pudsey.5 1. Roll. Abr. 65. Garbritt and Bell.6 3. Leon. 231.7 1 Roll. Abr. 65 pl. 4.8
3. Leonard. 231. Hill. 31. Eliz.9 “An Action upon the Case was brought for these Words vizt. Thou hast forged my Hand: It was holden by Gawdy and Wray Justices that such Words are not actionable, because too general, without shewing to what Writing. And by Wray, these Words Scil. Thou art a Forger, are not actionable because it is not to what Thing he was a Forger. Godfrey, Between Warner and Cropwell Scil. She went about to kill me; an Action lyeth for them: for if they were true, she should be bounden to the good Behaviour.
“And by Gawdy, for these Words scil. 'Thou hast forged a Writing': { 146 } They are not actionable because they are uncertain Words; which Wray concessitt:10 But if the Declaration had been more certain, as “innuendo,11 such a Deed,” then it had been good enough.
“Fuller, a Case was betwixt Brook and Doughty, Scil.; He hath Counterfeited my Lord of Leicesters Hand unto a Letter against the Bishop of London; for the which he was committed to the Marshalsea for it. And it was holden, not Actionable. And afterwards in the principal Case, Judgment was, Nihil capiat Per Billam.”12
Hawk. P.C. 1st. Part. chap. 70. Page. 184. §8. “and first it is clear, that one may be guilty thereof by the Common Law, by counterfeiting a matter of Record.” §9. “any other authentic matter of a public Nature,” &c.13
§11. “As to other Writings of an inferiour Nature, [ . . . ] the Counterfeiting them is not [properly] forgery,” rather Cheats.14
§12. Forgery by Statute. §13.15
Page 188, §4. Offences of this Kind &c. falsely and deceitfully obtain Money, Goods Chattells, Jewells by counterfeit Letter.16
Libel, Lye to Damage.
1. Roll. Abr. 65. pl. 4. “Si home dit al Auter17 he hath forged the Queens Evidence and I would not be in his Coat for £1000. Nul Action gist pur ceux Parols, par le Generality de eux.”18
1. Roll. 66. [pl.] 8. “Si home dit al Auter “Thou hast made forged { 147 } Writings and thou shouldest have lost thy Ears for it. Null Action gist pur ceux Parols, pur ceo que est tout ousterment uncerten queux Writings, il intend par le[s] primer Parols, car peradventure il intend ascuns Writings le Forgerie de que ne violent deserver le perder de ses Aures et donque les d'arren Parols ne explaneront son Intention, entant que Poet estre que ceo fuit forsque un male Conclusion sur le[s] Premisses.”19
“9. Si home dit al J.S. Thou didst Forge an Acquittance, and I will prove it, Action gist, car n'est material pur quel Chose L'Acquittance fuit, car tiel Forgerie est deins l'Estatute.”20
“10. Thou has caused a Deed to be forgd and a dead Mans Hand to be put to it, and cheated and couzened my Husband of his Land. Action gist. [ . . . ] Pudsey and Pudsey.”21
“11. Si A. dit, This is B. his Writing and he hath forged this Warrant (innuendo, &c.) B. n'avira ascun action pur ceux Parols par ceo le Parol Warrant est de un uncertain sense et le innuendo ne ceo aidera.”22
Sheppards Actions on the Case for slander.23
“It is said to be adjudgd not to lie for this thou are a forger of false Writings.”
“Nor as it seems for this Thou hast made false Writings, thereby to get my Land from me.”24
Croo. 1. Shep. Page. 166.25
1. In JA's hand. Adams Papers, Microfilms, Reel No. 185.
2. 4 Bacon, Abridgment 485. Quotation marks supplied.
3. 4 Bacon, Abridgment 485. Quotation marks supplied.
4. 4 Bacon, Abridgment 485. Quotation marks supplied. The citations at notes 30–335–8 below appear as notes in Bacon.
5. See text at note 4621 below.
6. Garbritt v. Bell, 1 Rolle, Abridgment 65 (K.B. 1639): Action lies for saying of B: “I have found Records which he hath forged, and he shall dearly pay for it. I have catched the forger.”
7. See note 349 below.
8. See note 4318 below.
9. Anonymous, 3 Leon. 231, 74 Eng. Rep. 652 (Q.B. 1589).
10. “Conceded.”
11. “Meaning.” The innuendo was that part of a declaration for libel or slander which explained or pointed out the defamatory nature of the words. Here Gawdy was noting that not all forgeries were crimes (as forgery of a deed was), and that therefore an imputation of an undifferentiated forgery would not be actionable.
12. “He takes nothing by his writ.” That is, judgment for the defendant. Quotation marks supplied.
13. 1 Hawkins, Pleas of the Crown 184. Quotation marks supplied.
14. 1 Hawkins, Pleas of the Crown 184. Quotation marks supplied. At the ellipsis JA has omitted the words: “it seems to have been generally laid down as a rule that.”
15. 1 Hawkins, Pleas of the Crown 184–185. The statute is 5 Eliz., c. 14 (1562). See note 4520 below. (The section numbers refer to the treatise, not the statute.)
16. 1 Hawkins, Pleas of the Crown 188: “Offenses of this kind by statute depend upon 33 Hen. VIII c. 1 [(1541)] by which it is enacted, 'That if any person or persons shall falsely and deceitfully obtain or get into his or their hands or possession, any money, goods, chattels, jewels, or other things of any person or persons, by colour and means of any privy fake token, or counterfeit letter made in another man's name,'” he or they shall upon conviction be liable to suffer imprisonment or any corporal punishment other than death.
17. “If a man says to another.”
18. “No action lies for these words, because of their generality.” 1 Rolle, Abridgment 65. Quotation marks supplied.
19. “No action lies for these words, because it is completely uncertain which writings he meant by the first words; for peradventure he meant some writings the forgery of which would not cost one the loss of his ears; and thus the last words would not disclose his intent, so that perhaps it would be a wrong conclusion in the circumstances.” 1 Rolle, Abridgment 66. Quotation marks supplied.
20. “If a man says to J.S. ... an action lies, for it is not material by what means the acquittance came, for such a forgery is within the statute.” 1 Rolle, Abridgment 66. Quotation marks supplied. The statute referred to is 5 Eliz., c. 14 (1562), “An Act Against Forgers of False Deeds and Writings,” especially §3.
21. 1 Rolle, Abridgment 66. Quotation marks supplied.
22. “If A says ... (meaning &c.) B shall not have any action for these words because the word 'warrant' is of uncertain sense and the innuendo will not aid it.” 1 Rolle, Abridgment 66. Quotation marks supplied.
23. Sheppard, Actions upon the Case for Slander. The two following paragraphs appear at p. 166 of this treatise.
24. Sheppard cites “Croo. 1 part last publisht 855,” probably an inadvertence for Perkinson v. Bowman, Cro. Eliz. 853, 78 Eng. Rep. 1079 (1600), which indeed seems to hold as the treatise suggests. Quotation marks supplied in this and the preceding paragraph.
25. Notes 4823, 4924, above.

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

Author: Adams, John
Date: 1767-05

Adams' Minutes of the Argument1

Barnstable Superior Court, May 1767
Otis.2 Certificate of General Assembly.
Law very much altered of late Times.
To prevent Gothic Contentions and single Combats.
High Proceedings.
Strange 747.3 Order for Allom. Forgery at common Law.
Protection from a Member.
Possibility of Damage.
Reason of the Thing. Injury.
Paper indictable.
Public Record.
Q. If Cotton had forgd this Paper, whether he would have been liable to an Indictment for a Misdemeanor?4
4. Bac. 506.5
Made a false Record. Forgery of a Writ.
Great Slander and Defamation.
Court unanimous Nyes Words actionable.
1. In JA's hand. Adams Papers, Microfilms, Reel No. 185.
2. James Otis, counsel for Cotton.
3. Rex v. Ward, 2 Str. 747, 93 Eng. Rep. 824 (K.B. 1727): Trial for forging an order for a quantity of alum. Held: a criminal forgery even though it did not appear that defendant had actually obtained any alum as a result of the forgery.
4. This is apparently JA's query.
5. 4 Bacon, Abridgment 506. The treatise at this point catalogues the actionability of various words, but does not mention forgery; see note 219 above.

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

Author: Adams, John
Date: 1767-05

Adams' Minutes of the Evidence1

Barnstable Superior Court, May 1767
Cotton vs. Nye
Mr. Fessenden. A Lye of his own making, and he had set their Names to it.
Jennings.3 Memento.   }   Deps.  
1. In JA's hand. Adams Papers, Microfilms, Reel No. 185.
2. See text at note 5 above.
3. See note 18 above.
4. See text at note 197 above.
5. See note 208 above.

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

Author: Adams, John
Date: 1767-05-16

Adams' Diary1

16 May 1767
The Court was fixed in the Sandwich Case. Cotton is not only a Tory but a Relation of some of the Judges, Cushing particularly.... Cushing was very bitter, he was not for my arguing to the Jury the Question whether the Words were Actionable or not. He interrupted me—stopped me short, snapd me up.—“Keep to the Evidence—Keep to the Point—dont ramble all over the World to ecclesiastical Councils—dont misrepresent the Evidence.” This was his impartial Language. Oliver began his Speech to the Jury with—“A Disposition to slander and Defamation, is the most Cursed Temper that ever the World was plagued with and I believe it is the Cause of the greatest Part of the Calamities that Mankind labour under.” This was the fair, candid, impartial Judge. They adjudged solemnly, that I should not dispute to the Jury, whether the Words were actionable or not.

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

Editorial Note

In the spring of 1770 the schooner Hitty, John Burnam, master, sailed from her home port of Marblehead to Philadelphia. As she lay at the wharf in the latter port, Burnam spent a night ashore. Next morning, a small locked trunk in which he kept gold coin was missing from its place inside a larger chest in his cabin. Two or three days later the empty trunk was found floating in the harbor with the bottom knocked out of it. The Captain's suspicions lighted upon James Mugford, a member of the crew. When the Hitty was about three days out of Philadelphia, homeward-bound, he undertook an inquiry to verify those suspicions. In the course of his investigations Burnam found a sum of money in gold dollars and johannes, amounting to about £20, part wrapped in a handkerchief and part in a purse, both of which were in a pair of Mugford's breeches hidden in some straw in the latter's quarters. After questioning the rest of the crew, Burnam confronted Mugford with his find and accused him of the theft. Mugford denied his guilt and insisted that the money was his, saying that the Captain had most likely come back aboard and taken the money himself. Angry words and threats followed between the two, but the net result was that Burnam kept the money.1
{ 150 }
Mugford brought suit against Burnam within a few days after their return to Marblehead. His declaration in trespass alleged a taking “at said Marblehead,” a fictitious allegation intended to overcome any objection to the venue based on the fact that the incident had not occurred within Essex County.2 At the July 1770 term of the Inferior Court at Salem, after a plea of the general issue, the jury found a verdict for Mugford of £22 damages and costs.3
On the appeal which followed, Adams joined John Lowell as counsel for Captain Burnam. Adams' minutes of testimony at the trial in the Superior Court in June 1771 offer some interesting views of life aboard ship and indicate what a slender thread of circumstantial evidence there was to justify Burnam's taking. These witnesses and the depositions on file in the case were agreed that Mugford had had money when he got to Philadelphia, and that Burnam had taken money from Mugford's possession. Burnam could offer no direct evidence that the money was his, or that Mugford had come by it wrongfully. Thus, Mugford's title, as well as his possession, was made out. In this state of the case it is hardly surprising that the jury returned a verdict affirming the former judgment for Mugford.4
1. See the depositions of the mate and two members of the crew in SF 132064. Mugford was probably the Massachusetts naval hero, who was killed in action in Boston Harbor, 19 May 1776. See AA to JA, 27 May 1776, 2 Adams Family Correspondence 417–419. His status aboard the Hitty cannot be clearly determined. He is described as “<Mate> a Seaman,” yet he shared a cabin with the mate. Deposition of George Wellford, note 84 below.
2. Writ and declaration are in SF 132064. As to the venue, see p. 35, note 2812, above.
3. The judgment of the Inferior Court is in SF 132064.
4. Min. Bk. 93, SCJ Ipswich, June 1771, C–13; SCJ Rec. 1771 fol. 95.

Docno: ADMS-05-01-02-0003-0004-0002

Author: Adams, John
Date: 1771-06

Adams' Minutes of the Trial1

Essex Superior Court, Ipswich, June 1771
Burnam vs. Mugford.
Jno. Melzond. Was on board the Vessell with Captn. Burnam and Mr. Mugford. Burnam took an Hankercheif and a Purse and 1/2 Jo[hannes]2 in it, and some small Money. B. askd Mugford is that your Money? Yes. M. said Do you intend to keep it. M. claimed it as his Money. Said it was his Money and asked C[aptain] B[urnam] if he want going to let him have it. B. said No. Cant say if the Handkerchief was his. 1/2 Jo. in the Purse. B. did not claim any Thing but the Money. I had seen M. have such a Purse and wear such a Pair of Breeches. He had a Chest on board. Dont know how M. came by the M[oney].3 M. said he brought the Money from Spain. He had a Watch which he used to keep in the Coopers Chest. C.B. was out that { 151 } Night. Fortnight or 3 Weeks before. I went and made the C[aptain]s Cabbin. Dunlop the officer, and Mugford playd a Game of Cards. I saw the Cabbin open and his Trunk next Morning. B had Money in that Trunk. Mugford had Money, with him when he went to Phyladelphia. He lent 21/2 Jos. and said his father gave em to him to buy Pork. M. a foremast Hand. B. when he found his Trunk was broke he said he had lost about £4500. [ . . . ]. The Trunk was found between the Wharfe and ship. The Trunk was generally lockd the Chest Unlock'd. 2 Hds. Molasses rolled off the Wharf that Night.
James Mugford—father of Plaintiff. The Voyage before this, he went to Spain, and he carried with him Fish &c. which sold for £60 L.M. He had a Months pay of C.B. and the neat Proceeds of an Hogshead of Molosses, which might amount to £70 L.M. He told me he brought Money from Spain. He brought from Phyladelphia 5 Barrels flour and 1000 Wt. Bread. I gave him no Johannes to buy Pork, or anything, before he sail'd.
George Wilfords Deposition vid.4
Grist. M. told me that C. Mugford5 accused him with stealing Money, which he was innocent of, as the Child in the Womb. He said He carried 10 Jos. which his father gave him, to buy Pork. He did not buy it because the Pork was so dear.
Mr. Grist. M. told me he was clear, &c.
1. In JA's hand. Adams Papers, Microfilms, Reel No. 185.
2. A Portuguese gold coin worth about 36s. sterling. OED.
3. MS torn.
4. The deposition of George Wellford, dated at Marblehead, 10 April 1771, is in SF 132064. Wellford testified that, on the voyage to Philadelphia, Mugford had told him “that he had got seven or eight small pieces of gold which he said he would if he could pass them for dollars.” At Philadelphia, Mugford had said “that he brought eighteen Jos. which his father sent by him to buy pork, but pork being dear, he would not buy it, but would [lay?] out the money in flour and bread.” The deposition also substantiates the other accounts of the theft of the trunk and Burnam's confrontation of Mugford.
5. An inadvertence for Captain Burnam.

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

Editorial Note

In the bitter verbal battling which rumbled beneath the physical violence of the pre-Revolutionary years, the heavy advantage rested with the radical press. Led by such pseudonymous journalistic swordsmen as Samuel Adams, Joseph Hawley, and Joseph Warren, the patriots skewered { 152 } the administration and the loyal faction without restraint, and almost without opposition.1 Only one tory printer possessed sufficient journalistic skill and courage to brave the muscular threats with which Sam's Mohawks imposed their ideas of liberty. That man was John Mein, printer of the Boston Chronicle. It was Mein, for example, who crippled Adams' nonimportation campaign by publishing authenticated lists of the self-styled “well-disposed” merchants who, having signed the agreement not to import, were quietly landing and selling forbidden goods.2
Mein's combative nature and his journalistic skill plunged the Boston Chronicle into controversy from the very start of its brief existence. In the first issue, under a London dateline, Mein ran a sharp attack on William Pitt, Earl of Chatham, the idol of the Sons of Liberty.3 A violent response by “Americus” appeared in Edes and Gill's Boston Gazette, indirectly accusing Mein, among other things, of Jacobite leanings.4
{ 153 }
Storming into the Gazette's office, Mein unsuccessfully demanded that the editors name the author; returning the next day, he repeated his inquiry and was again repulsed.5 Finally, that evening, Mein met Gill and, by his own admission, caned him.6
{ 154 }
Gill sued Mein for £200 at the April 1768 Suffolk Inferior Court, where with Adams as Gill's counsel the case was tried on 28 April 1768; after a “long hearing” the jury brought in a verdict for Gill of £130 and costs.7 Both parties appealed. Meanwhile, Mein had been cited criminally for the assault, and at the April sitting of the Court of Sessions, had been fined forty shillings.8
At the March 1769 Suffolk Superior Court, the civil matter went to trial on Mein's appeal, with Kent and Auchmuty defending Mein, while Otis and Adams (whose minutes appear below) represented Gill. This time Gill won again, but the verdict was reduced to £75 and costs. A motion for a new trial was made in Mein's behalf, but later withdrawn.9
From the state of Adams' minutes, it seems probable that he opened for the plaintiff and was followed by Kent for the defendant. Plaintiff's evidence then went in, but defendant did not introduce any. Auchmuty closed for defendant, and Otis for plaintiff.
Although Mein's plea had traversed (denied) the assault, and had not attempted to justify it, the Adams minutes suggest that Mein conceded the striking but sought to minimize the damages by arguing provocation.
1. The best treatment of this subject is Arthur M. Schlesinger, Prelude to Independence 84–109 (N.Y., 1958); see also John C. Miller, Sam Adams, Pioneer in Propaganda 174–176 (Boston, 1936); E. F. Brown, Joseph Hawley 63–68 (N.Y., 1930); John Gary, Joseph Warren 60–63 (Urbana, 111., 1961).
2. On Mein's life, see Alden, “John Mein: Scourge of Patriots,” 34 Col. Soc. Mass., Pubns. 571–599 (1942), and Bolton, “Circulating Libraries in Boston, 1765–1865,” 11 Col. Soc. Mass., Pubns. 196–200 (1907). See also No. 12. On the Boston Chronicle, see Matthews, “Bibliographical Notes to Check List of Boston Newspapers, 1704–1780,” 9 Col. Soc. Mass., Pubns. 403, 480–483 (1907); Schlesinger, Prelude to Independence 107; Andrews, “Boston Merchants and the Non-Importation Movement,” 19 Col. Soc. Mass., Pubns. 159, 227–230 (1917).
3. “It is confidently reported that the E. of C—'s gout is only political, and that notwithstanding his late indisposition he will soon appear on the scene of action and struggle hard to guide the reins of government, but having lost the confidence of the people, whom he has deceived by his contradictions and changes, and never having been a favorite with the nobility, whom he always affected to dispise, he will while he exists be considered by every disinterested man as a miserable monument of wrecked ambition.” Boston Chronicle, 21 Dec. 1767, p. 5, col. 1. In the same piece, the Marquis of Rockingham received praise for having “quieted the commotions which shook the state by the repeal of the American Stamp Act; while he preserved the constitution in full vigour by the act for securing the dependence of the colonies.”
4. “When I read the Proposals, for publishing the Boston Chronicle, I tho't on the Plan with Satisfaction, hoping thereby much good would accrue to America in general, and to this province in particular; with Pleasure I also noted the judicious Advice given Messi'rs Mein and Fleeming by their Friends of Taste. It runs thus:
“'We suppose you intend to study your own Interest; if you would do it effectually, be of no Party, publish and propagate with the greatest Industry whatever may promote the general Good. Be Independent—Your Interest is intimately connected with this noble Virtue—If you depart from this, you must sink from the Esteem of the Publick, to the partial Praise of a Party, who, when their Purposes is serv'd or defeated, may perhaps desert you, and then how can you expect that those whom you have revil'd will support you'—To which at that Time they answer'd.—'Whenever any Dispute claims general Attention, the Arguments on both Sides shall be laid before the Publick with the utmost Impartiality.'
“But to the Surprize of many, how are they fallen off from their own Purposes, and the excellent Caution of their Benefactors—Instead of giving impartial Accounts concerning Affairs at Home, and the unhappy Disputes lately arisen between the greatest Men of the Nation; they have made Choice of, or printed under Guise of being taken from the London Papers, the most infamous and reproachful Invectives, that ever was invented against the worst of Traitors to their King and Country, and who are these that are thus censur'd? Why, men held in the highest esteem and veneration in the British Parliament. Patriots and Friends and Deliverers of America from Oppression. He who nobly vindicated her Cause, almost against the whole Senate, who cast behind him all Lucre of Gain, when it came in Competition with the Good of his Country, and sacrific'd his Family-Connections and Interest to the publick Welfare. He that through real Infirmities hardly stood, (not to cover his politic Schemes and Ambition as his Enemies would insinuate) but stood though tottering, and in the Cause of Liberty made that heroic Speech before the august House of Commons, in Opposition to the Stamp-Act, sufficient to eternize his Fame, and ought to be written in Letters of Gold to perpetuate his Memory. Could the Sons of America be ingrateful, or countenance the greatest Falsities, rais'd only to prejudice their best Friends and Benefactors—God forbid! Let that Dishonor stain with the blackest Infamy the Jacobite Party—And though Invectives should be daily thrown out, let us keep our Integrity to the Confusion of our Enemies; who, for a long Time have exerted their Power to shake the Props of our Constitution, and bring a free people into Bondage, thereby to satisfy their more than common Avarice, &c.” Boston Gazette, 18 Jan. 1768, p. 1, col. 3.
Benjamin Edes (1732–1803) and John Gill (d. 1785) had been partners since 1755. Isaiah Thomas, The History of Printing in America, 1:136–140 (Worcester, 2d edn., 1874). “Gill was a sound whig, but did not possess the political energy of his partner. He was industrious, constantly in the printing house, and there worked at case or press as occasion required.” Id. at 140.
“In consequence of a piece signed Americus, published in the last Monday's Gazette, Mr. Mein came to our office between 4 and 5 o'clock the same afternoon, and there being a number of persons present, he desired to be spoke with in private, accordingly I withdrew with him to another room—when he said, I suppose you know what I am come about. I told him I did not. Well then, said he, I am come to demand the author of the piece you printed against me; and if you will not tell me who he is, I shall look upon you as the author, and the affair shall be decided in three minutes. In reply to which I said, Mr. Mein, above all persons in the world, I should not have thought a Printer would have ask'd such an impertinent, improper question; and told him that we never divulg'd authors; but if he would call on the morrow between 9 and 10 o'clock, being then very busy, I would let him know whether I would tell the author or not,—and added,—if we have transgress'd the law, it is open, and there he might seek satisfaction. He said he should not concern himself with the law, nor enter into any dispute; but if I did not tell the author, he should look upon us as the authors, and repeated it, the affair should be settled in three minutes. I then ask'd him, if what he said with regard to settling the affair in three minutes, was meant as a challenge or threat? which he declin'd answering, but said he would call at the time appointed, and then departed.
“Accordingly the next morning, I was at the office precisely at 9 o'clock, where I found Mr. Mein, who immediately after my entrance, and saying your servant, ask'd whether I would tell him the author of the above piece or no. I told him I would not. He then said he should look upon me and Mr. Gill as the authors. I told him he might and welcome. I then ask'd him what he meant by saying the last night he would settle the affair in three minutes, whether as a challenge or threat? He answered, if I would take my hat, and take a walk with him to the southward, he would let me know. I told him I was not to be at every fellow's beck, and did not regard him. He then said, I shall look upon you as the author. I reply'd, you may. Your servant, and your servant. B. Edes.” Boston Gazette, 25 Jan. 1768, p. 2, col. 1.
6. See note 112 below.
7. Massachusetts Gazette, 5 May 1768, suppl., p. 1, col. 3; SF 101491.
8. Rex v. Mein, Sess. Min. Bk., Suffolk, April—May 1768.
9. Min. Bk. 89, SCJ Suffolk, Aug. 1769, C—12; SCJ Rec. 1769, fol. 235.

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

Author: Adams, John
Date: 1769-03

Adams' Minutes of the Trial1

Suffolk Superior Court, Boston, March 1769
Gill vs. Mein.
News Paper. Jacobite Party.
Kent. Odd that Edes and Gill should desire him to be of no Party. Pitt is a fallen Angell, and given up by his Partizans, since he dwindled into a Lord. Lost. Lucre of Gain. Gain of Gain. Did not come from Salem.2 Mem. no Witchcraft in it. Jacobite Party, ungenerous base Insinuations. Kick upon the A—se.
{ 155 }
B. Edes. No Conversation past between Us, about agreeing not to abuse one Another, nor to mention one Another. The Account I published is true, all but one Word, and I am uncertain whether I said Fellow, Rascall or Scoundrel.
Anthony Oliver. Do not remember Meins desiring Edes and Gill, not to mention him in their Paper, Mein said he would get the Printers to meet, so that they might have no Dispute.
Auchmuty. I shall confine myself to one single Object, the Quantum of Damages. To view a Case of this sort thro the Flames of Passion, must give you a dissagreable Turn against the Rules of Justice.
The Passions are sometimes, excused by Law. Son killing the Assailant of his father. The Husband killing An Adulterer, with his Wife, not guilty of Murder, Jury not to punish in Terrorem. Feeling, &c. Tendency to take away his Bread by publishing that a Man publishes Falsities. Sporting and wantoning with Characters. Not from Man to Man, but scattered thro whole Countries. Have not been so civil as to [give?] his Name. If Printers will not tell the Author they must be treated as the Authors themselves.
Auchmuty. Uncandid and uncivil, not to tell the Author. An Indication of some little Guilt, in the Mind of Mr. Gill when he desired Witnesses beforehand, to take Notice if Mr. Mein should Assault him.
Virulence of Representation, high Colouring Rather that Mr. Adams has given it in Opening.
“But how are they fallen off,” &c. This is to catch and byass the Reader.
Accuse Mein of taking out of “Choice ... the most infamous and reproachfull Invectives” vs. the Patron of the Country. By his Profession depends vastly upon the public Smiles. The Insult vastly greater, upon Us, than upon Gill.
Encomiums and Panegyricks upon Mr. Pit or the Person alluded to. 1st to be guilty of infamous Lying, and for no other End but to abuse the “best Friends and Benefactors” of the Country. A Lyar, a Traytor, and a Jacobite. Assassin, Ruffian, Spaniards Sticking and Stabbing.3 { 156 } Henshaw and Tyng.4 Lye, the high Provocation. If I was to call Assassin, and Ruffian, I would in some other Place. A Man must be made of Oakum, not to feel Cutting, and tearing Characters. It is one of the greatest inconveniences, and may be attended with public Mischief.
Otis. Weight and Bulk of the Stick. Observations a cool deliberate Action. No sudden Heat, or Ruffle of Passion. Went once and twice to the office, and took an Opportunity afterwards to beat. Gill pretends not to be a Boxer, Bruizer, Man of the sword or any Prowess whatever. I would not engage Mein, but I would beat 2 of Gill.
He was assaulted for carrying on a Paper, in the Course [of] his Business. No Man I think ought to publish an Opinion that he is not able nor willing to defend.
Mr. Cooke5 who lived and died in the Service of the Town whose last Words expressed Wishes for our Welfare, and Fears of the very Things that are now coming upon Us.
Chaind between two Posts. Odd Idea of Liberty of the Press.6 A Fashion to raise a vast Outcry vs. this Paper. Scurrillity of Grandees. Dream or Vision, of a mutual Compact between Mein and Gill.
Green & Russell7 go on in pe[a]cable quiet, harmless, dovelike, inoffensive Manner. Distinction between Bump and Tumour. Note the Diversity.
Paper set up above all Criticism. This is but a Criticism [of?] impartial History.
{ 157 }
Little nibbling quibbling Decisions in our Books about Libells and Actions of Defamation.8 All these decisions cannot make the Words “leave these Things to the Jacobite Party” applicable to Mein.9
Interlard and interlace with Innuendo's.
1. In JA's hand. Original not found, but a photostat of the MS, originally in private hands, is preserved in MHi:Photostat Coll. under date of 1768. Quotation marks supplied by the editors. See note 4 above.
2. A paper in Mein's hand in 3 Bernard Papers 45, 46, MH, explains this allusion: “Jemmy [Otis] is fond of dating his pieces from Salem, being the town where he has the fewest Adherents. And he is suspected from good Authority of being the author of the abusive piece in Edes & Gill against me when our Chronicle was first published, which obliged me to call on the Printers, and on their refusal to name the Authors to ask them one after another to take a short Walk; and on their declining it to cane the first of them I mett which has already cost me about £100 St.” On the resistance of Salem to the nonimportation agreement, see Miller, Sam Adams 222.
“The Freedom of the PRESS has been deservedly esteemed an important Branch of our Liberty. We hold it dear, and look on all those as our Enemies who endeavour to deprive us of it. The Dispute therefore between Messieurs Gill and Mein, cannot be looked upon barely as a Dispute between two private Persons, but is of the highest Importance to the Community. If we suffer the Printers to be abused, for resolutely maintaining the Freedom of the Press, without discovering our just Resentment against those who endeavour to force them from their Duty, we shall soon find the Press shut against us—For it cannot be expected that one or two Men who will be subject to the Malice of the publick Enemies, bear to be bruised, and run the Hazard of being assassinated, if the Public, whose Cause they are fighting do not zealously patronize their Cause. The People in this Province, and this Town in particular, must for the foregoing Reasons, be justified in their general Disapprobation of, and Disgust to Mr. Mein, for his late Spaniard-like Attempt on Mr. Gill, and in him, upon the Freedom of the Press.” Boston Gazette, 1 Feb. 1768, p. 2, col. 2.
4. The reference is unclear.
5. Elisha Cooke (1678–1737), “the masterly hand from School Street,” politician and court clerk, of “a fixt enmity to all Kingly Governments,” had led the fight against the royal prerogative in the 1720's. He even sailed to England to argue the cause before the Privy Council. DAB. Ironically, a transcript of the Privy Council proceedings had appeared in the Boston Chronicle, 11 Jan. 1768, p. 33, cols. 1–3. Cooke was the father of Middlecott Cooke (1705–1771), clerk of the Suffolk Inferior Court. See vol. 2:248–249, notes 4, 5, and 7, below.
6. “Otis at my trial for caning Gill, bandied about this Liberty of the Press as the Salvation of America, and said, that in beating him I had endeavoured to shutt up that great Source of freedom.” Mein, “A Key to a Certain Publication,” 3 Bernard Papers 45, 47, MH.
7. John Green and Joseph Russell, publishers of the pro-Administration Boston Post-Boy. Matthews, “Bibliographical Notes,” 9 Col. Soc. Mass., Pubns. 403, 470.
8. See the discussion of this point in 8 Holdsworth, History of English Law 355–356, cited in No. 3 at note 9.
9. The words are apparently Otis' paraphrase for “Let that Dishonor [i.e. falsities and prejudice of friends] stain with the blackest Infamy the Jacobite Party,” from the Americus letter, note 4 above.

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

Editorial Note

This was an action brought by John Gray for injuries inflicted upon him by Lendall (or Lindall) Pitts in a scuffle outside Dehon's barber shop in Boston. Adams' minutes indicate that the underlying cause was an earlier incident in which Pitts had “gallanted” what he assumed to be an attractive young lady, only to learn that feminine clothes covered a masculine form—either Gray himself or another male procured by him. Pitts blamed Gray in any case and, after unsuccessfully demanding an apology, opened Gray's scalp with a walking stick.
Gray sued in the July 1771 Suffolk Inferior Court for £300; Josiah Quincy was able to win him only a £5 verdict, which Gray appealed to the August 1771 Suffolk Superior Court.1 There, the jury awarded him £18 damages and costs of £10 8s. 8d. Adams, who had been specially appointed guardian ad litem for Pitts (a minor), was his counsel at both trials.2
From a technical standpoint, the case is interesting because, although the plea was not guilty, that is, a flat denial of the assault, Adams was allowed to introduce evidence in justification of the blow.3
{ 158 }
Adams' minutes suggest that James Otis spoke at the trial on 2 and 3 December 1771, although he was not counsel of record for either party.4 In fact, on the latter date Otis, having been certified “a distracted person” by the Selectmen of Boston, was “carried off ... in a post chaise, bound hand and foot.”5 If the remarks recorded by Adams were actually made in court, they not only offer a striking glimpse of Otis on his way to the madhouse, but suggest a very informal court room atmosphere.
1. SCJ Rec. 1771, fol. 216. SF 101911. Pitts' cross appeal was dismissed, the merits having been determined in Gray's appeal. Min. Bk. 95, SCJ Suffolk, Aug. 1771, N–11.
2. SF 101911. JA's wealthy client, James Pitts, had a son named Lendall. If the dates (1747–1784) given for him by Shipton are correct, however, he could not have been a minor in 1771. See 9 Sibley-Shipton, Harvard Graduates 81; Francis S. Drake, Tea Leaves 141–145 (Boston, 1884). The Pitts here involved may be the Pitts referred to in the deposition of Sergeant John Eylery, dated 25 Aug. 1770, 12 Gay Transcripts 93, MHi. On 17 Oct. 1769, Eylery said, a mob gathered before the Guard Room door—on the south side of King Street, across from the Town House—and began insulting the sentinels “in a most abusive manner, and particularly one Pitts who said if he had the Scoundrels elsewhere and without Arms he would thresh them as long as his cane would last.”
3. See note 146 below.
4. Min. Bk. 95, SCJ Suffolk, Aug. 1771, N–11, N–17. The dates are fixed by the foregoing entries. The trial began on the “18th day” of the Aug. term, which, after an adjournment, had reconvened on 26 Nov., the 14th day. The subpoena and bill of costs in the file confirm this determination. SF 101911.
5. Selectmen's Minutes, 26 Nov. 1771, 23 Boston Record Commissioners, Reports 103–104 (1893); letter of Thomas Hutchinson to Francis Bernard, 3 Dec. 1771, 27 Mass. Arch. 260.

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

Author: Adams, John
Date: 1771-07

Adams' Minutes of the Trial1

Suffolk Inferior Court, Boston, July 1771
Gray vs. Pitts.
James Melvin. Saw Pitts push Gray off with one Hand and give him a stroke with his Stick. G. no Hatt on. Saw the Blood run. A knotty Stick—big as the Thumb. Bigger than [Wallaces's?]. Did not strike so hard as he could.
Wm. Winter. Gray came into Dehons shop.2 Pitts and he went out. Pitts demanded Satisfaction. I ask your Pardon you chuckle headed son of a Bitch. Pitts held up his Fist and Gray held up his, and then Pitts pushed him off with one hand and struck him with the other.
Mr. Hutchinson.3 Pitts told me, he had sent a Lad to demand Satisfaction for the Insult he had received. Saw Gray stand holding his Coat, the Blood dropping from his Head.
Odin.<Pitts sa> Gray said you woolly headed Rascall. Pitts said you shall—The Blow did not seem very hard. Saw Blood.
Mr. Molineux.
1. In JA's hand. Adams Papers, Microfilms, Reel No. 185. The trial took place 26 July 1771, according to a summons in the Inferior Court file.
2. William Winter, “peruke maker,” was also a witness in the Superior Court. SF 101911. “Dehons” is probably the shop of Theodore Dehone, Perukemaker. See Thwing Catalogue, MHi.
3. Godfrey Hutchinson, “infant,” was also a witness in the Superior Court. SF 101911.
{ [facing 158] } { [facing 159] }

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

Author: Adams, John
Date: 1771-12

Adams' Minutes of the Trial1

Suffolk Superior Court, Boston, December 1771
Gray vs. Pitts. Assault and Battery.
J. Quincy.
We had done nothing but what was justifiable by the Laws of our Country.
J. Whitworth.2 Pitt said in the forenoon, that Gray had used him very ill, and he would beat him whenever he met him. About 11/2 Hour before, he did [ . . . ] Very ill in Speaking Reports of him.
Mr. Hutchinson.3 Pitts told me he had sent a Lad to the Custom house to call Gray out to demand Satisfaction of him. And I saw em at it, and the Blood dropping from G's Head. Stick knotty, 1/2 Inch Diameter.
Tim. Odin. Pitts went into the Barbers shop, and asked Gray if he would ask his Pardon. No, you wooly headed Rascall, I wont. D—n you you shall, running his Fist up says Pitts. I could not hear the rest of the Conversation till Pitts struck him. The stick did not seem to be struck hard. But Gray said, Ile set this down to your everlasting Account.
Melvill.4 Gray had no stick nor Hatt. Gray and Pitts were coming from Dehones shop, to Carpenters. Pitts in a Passion. Pitts shoved him off first with his Hand, and then a stroke with a stick. Saw the Blood.
Isaac Pierce. Heard a Blow at the Town House steps. About 3. Rods.
Dr. Roberts. 2 Wounds, one about 3/4 of an Inch, the other between 1/3 and 1/2 on the scalp, Top of the Head. Both done at one blow. About 12 or 14 days. Every other day. Bill a Guinea. No more than a flesh Wound.5
J. Quincy. If he had a Mind to discover his Manhood as much as he had at other Times he would have taken another Weapon.
Knows Gentlemen who have a Talent of diminishing or exagerating just as they please.
{ 160 }
Pain, of Body, Expences, Ignominy.
Of great Importance that Juries should be uniform and steady in their Decisions, and that Capriciousness and Humour should not prevail.
Atrocious, inhuman, Injury &c.
Our Witnesses
Shaw. No you woolly headed Rascall dam ye you woolly headed Rascall, I ask your Pardon. And Gray run his Fist up at his face in a threatning manner. Cant say which fist was up first, Grays or Pitts's.
Jones. Pitts told me Gray had used him <at> in a Rascally Matter. Gray called him chucklehead, and put his fist up to Pitts's face, cant say he touched him. 1636 upon the Head of it. The stick was like a fishing Cane. I ownd it—lent it to P. 2 or 3 Months before. Very light stick and hollow I thought.
Mr. Plaisted.
Mr. Molineux.6 I saw him dressed in Womens Cloaths. He had the outward Appearance of a Woman, a Gown and Womens Cloaths. I saw a Couple of young Gentlemen gallanting him. Pitts was one. I was very sensible they were taken in. Plaisted was the other. They appeared to be very loving—she rather Coy. I called out to Pitts at New Boston.7 He turnd a deaf Ear. He came back and said he had a very clever Girl, and went to her again.
Otis. Clodius, dressed in Womans Apparell, broke in upon the Sacrifices of the Bona Dea.
Orat. pro Milone beginning.8
{ 161 }
J. Quincy. No smart saying, no pointed Turns. Amorous Rencounter.
Judge Hutchinson. Prov. Law Page 61. last Clause of the Act to prevent Incestuous Marriages.9
1. In JA's hand. Adams Papers, Microfilms, Reel No. 185.
2. John Dean Whitworth, Boston merchant. SF 101911. See Jones, Loyalists of Mass. 295.
3. See note 83 above.
4. Probably the “James Melvin” whose testimony is set out in Doc. I above. James Melvil, “infant, peruke maker,” was a witness in the Superior Court. SF 101911.
5. This concession may have emerged on cross-examination. Dr. Roberts was apparently a reluctant witness, since a capias for him appears in the file. SF 101911. Peter Roberts had a shop “near the Town House” in 1767. Thwing Catalogue, MHi.
6. According to the file, this was William Molineux Jr, son of the patriot leader. SF 101911. See Samuel A. Drake, Historic Fields and Mansions of Middlesex 424 (Boston, 1874). This evidence, presumably in justification, was apparently not objected to, although it was inadmissible under the plea of the general issue entered here. See 1 Chitty, Pleading 491–493.
7. The Beacon Hill area. See 2 JA, Diary and Autobiography46–47.
8. “Clodius ... being in love with Pompeia, Caesar's wife, got privately in his house in the dress and attire of a music-girl; the women being at that time offering there the sacrifice which must not be seen by men.” Plutarch, Lives 1057 (Dryden transl., Modern Library edn.). This was the sacrifice to the Bona Dea, or Good Goddess, “worshipped by the women of Rome as the goddess of chastity and fertility.” C. T. Lewis and C. Short, A New Latin Dictionary 243 (N.Y., rev. edn., 1907). When in 52 B.C. Titus Annius Milo stood trial for Clodius' murder, Cicero defended him. Otis' second reference is to an expanded version of Cicero's address, Pro T. Annio Milone Oratio (Speech on Behalf of T. Annius Milo). Cicero, Speeches 6–123 (London & N.Y., transl. Watts, 1931). For a reference to the Bona Dea incident, see id. at 68 note. The passage cited by Otis seems to be: “When arms speak, the laws are silent; they bid none to await their word. ... And yet most wisely, and, in a way, tacitly, the law authorizes self-defense. ... The man who had employed a weapon in self-defence was not held to have carried that weapon with a view to homicide.” Id. at 17.
9. Act of 19 June 1696, c. 2, §7, 1 A&R 208, 210: “[I]f any man shall wear women's apparel, or if any woman shall wear man's apparel, and be thereof duly convicted, they shall be corporally punished or fined, at the discretion of the quarter sessions not exceeding five pounds, to the use of the county where the offence is committed, towards the defraying of the county charges.”

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

Editorial Note

This action was the climax of a series of clashes between James Steel of Haverhill, Massachusetts, and Asa Porter, a merchant and trader from the upper Connecticut Valley Coös region of New Hampshire.1 In September 1767 Steel had sold Porter and his partner Andrew Savage Crocker a consignment of 1600 barrel hoops. After Porter accepted settlement against him in another matter, Steel sued out a writ for the value of the hoops returnable at the December 1769 term of the Essex County Inferior Court.
Porter traveled south into Massachusetts in the fall of 1769, settling his accounts with various correspondents. At the beginning of November he told Jacob Rowell to leave a note of Porter & Crocker, which he held, at Walker's Inn in Haverhill, where Porter would settle it. On 29 November Porter stopped at Walker's and left Rowell a letter, reporting that he was unable to pay the note now but that satisfaction could be had from a correspondent in Newburyport. On the next day Porter and Steel met at Harriman's Inn at Plaistow, New Hampshire. Here, Porter paid Steel's claim for the hoops and, according to Porter, also gave Steel the sum owed to Rowell with instructions that it be paid over to the latter. Porter took a receipt and then departed for Coös.2
Whatever the agreement, Steel did not make payment to Rowell. Accordingly, Porter & Crocker brought suit against Steel at the July 1770 Essex Inferior Court. The declaration contained two counts: (1) That Steel had “received of the Plaintiffs the sum of five pounds ten shillings and in consideration thereof promised the plaintiffs to pay the same sum to one Jacob Rowell on their account and to procure the same sum to be endorsed on a note of hand which the said Rowell had of the plaintiffs payable to the said Rowell.” (2) A count in indebitatus assumpsit for the same amount, “had and received by said James for the use of the Plaintiffs.” On { 163 } a plea of the general issue entered by Nathaniel Peaslee Sargeant, counsel for Steel, the case went to the jury, which returned a verdict for Porter in the sum sued for and costs.3
Steel appealed to the Superior Court, where at the June term 1771 he obtained a verdict reversing the prior judgment.4 Porter now sought a writ of review. In November 1772 the case came on in the Superior Court at Salem, with Adams joining Sargeant as Steel's counsel, and John Lowell appearing for Porter. The form of Steel's receipt and the nature of the pleadings suggest some interesting possibilities in the law of contracts, but no issues in this field seem to have been raised.5 Adams' minutes of the evidence (Document I), and minutes of a portion of the argument in Wetmore's hand (Document II) indicate that Steel's basic contentions were factual: he had not signed the memorandum of the contract urged against him; he had not received the sum sued for. As to the first point, the plaintiffs introduced the original memorandum and a handwriting sample to establish Steel's signature. Steel then urged that the instrument had been altered after he had signed it, but the court ruled that he bore { 164 } the burden of proof on this issue. The jury apparently found that he had not met this burden and that circumstantial evidence indicated that he had received the money, because the verdict was for Porter & Crocker.6
1. The following statement of the case is derived from the testimony on review in the Superior Court (Doc. I), and the files of the case, SF 132063, 132246, pertinent extracts of which appear in footnotes below.
2. The receipt on file in the case provides, “Plastow 30th Novr. 1769. Received of Porter & Crocker five pounds ten shilling which I promise to pay to Jacob Rowell of New Salem on their Account and to endorse it on their note payable to him, and also received of said Porter & Crocker five pounds eighteen shillings & 8d. LM in full for hoops and all demands. James Steel.” SF 132246.
3. See pleadings and judgment, SF 132246.
4. SCJ Rec. 1771, fols. 94–95; Min. Bk. 93, SCJ Ipswich, June 1771, C–12. The following minutes of the trial appear in the Wetmore Notes, No. 2, Adams Papers, Microfilms, Reel No. 184:
“Steel and Porter. Assumpsit. Special declaration, and Count for money received to plaintiffs use.
“The 1. Count is for a promise to pay a Sum he had received of the plaintiff on their account to B. [apparently an inadvertence for Rowell] and to procure it to be indorsed on a Note given by the Plaintiffs to said B. yet he hath not paid it to said B. nor procured it to be indors'd on said note tho requested.
“The written promise is that he had received £– of Plaintiffs which I promise to pay to B. of —— on their account and to endorse it on their note payable to him. Sewl. objects the variance between Count and writing.” (“Sewl.” is David or Jonathan Sewall, of counsel for Steel with Sargeant at this stage.)
5. The theory of the first count seems to have been that the action lay on Steel's promise to pay over the money and procure the endorsement, with Steel's receipt of the money as consideration. Such a contract has been upheld against a defense of no consideration on the theory that there was detriment to the promisee in handing over the money and trusting the promisor. Wheatly v. Low, Cro. Jac. 668, 79 Eng. Rep. 578 (K.B. 1624), cited with approval by Holt, C.J., in Coggs v. Bernard, 2 Ld. Raym. 909, 920, 92 Eng. Rep. 107, 114 (Q.B. 1703). Modern theorists have sought to limit this recovery to bailment situations, indicating that otherwise the remedy lies in tort, but it is analogous in at least some respects to the remedy provided by the Restatement of Contracts, §90, for breach of a gratuitous promise which induces a reasonable reliance. See Samuel Williston and George J. Thompson, Selections from Williston's Treatise on the Law of Contracts §138 (N.Y., rev. edn., 1938); G. C. Cheshire and C. H. S. Fifoot, Law of Contract 68–71 (London, 4th edn., 1956). There is the further possibility that the receipt as proved, but not pleaded (note 2 above), might have been read to recite a consideration in Porter's settlement of Steel's claim for the hoops, although there is serious question whether payment of an existing debt is consideration. See Williston and Thompson, Selections §120. Since the approach under the first count could have involved problems of proof of negligence, damages, and perhaps even reasonable reliance, it is quite possible that the case went off on the count for money had and received, in which the equities of the plaintiff's case were more directly in point. See Fifoot, History and Sources 365–367.
6. SCJ Rec. 1772, fol. 190; Min. Bk. 93, SCJ Salem, Nov. 1772, C–12.

Docno: ADMS-05-01-02-0004-0001-0002

Author: Adams, John
Date: 1772-11

Adams' Minutes of the Review1

Essex Superior Court, Salem, November 1772
Porter vs. Steel.
J[ohn] L[owell].2 Receipt. Wm. Wingate.3
Mr. Webster. P[orter] said S[teel] owed him. Sued him for 100 dollars. S. paid ½ of it, and was sued again for the other 50. S. said he was never paid for Hoops. P. said he cheated me out of 6 dollars in the 1st settlement of the 50 dollars, if there was some Hoops. S. then sued Porter, for the Hoops.
Writ. S. vs. P. & C[rocker] for Hoops.4
Jona. Serjeant. 1600 Hoops. S. deliverd.
Amos Mullikin. C. received the 50 dollars. C. paid the 6 dollars for my fees,5 generously, and treated Us too, upon our representing Poverty. Rather than S. should have gone to Goal, Mr. Wallace would have paid the whole 100 dollars. Dont think that S. knew that Wallace had any more Money.
S. Harriman. P. came into my House, and call'd for Drink, and Sat by the fire. P. moved to S. to walk into another Room. Moved it twice. At last they went into a cold Room. Saw em at the Table with Pen and Ink. Porter took up the drink and drank but never asked S. to drink, and never bid him farewell.6
{ 165 }
Moses Cushing. They sat at Table settling as I thought. No freedom between em.
Nat. Walker. Jacob Rowell lodged his Note with me. The young Man said P. was to be along and pay it. P. came along and asked me, about the Note, twice. He said he was bound [on] his Journey and could not take up that Note. He after left a Letter at my House, for Rowell. I am not in a Capacity to take up that Note now, but I have left a Letter to let him know when and where to receive it. Rowell came, and opend the Letter. The day I remember by the difficulty of passing the River.
Jos. Dodge. The River froze over 28th. Novr. 1769.
James Walker. Rowell left the Note. P. came down and left a Letter and then went and led his Horse over the Ice. There had not been any Horse over before. S. at N[ewbury]port offered P. to pay the Money, if you will give your Oath, that you gave me that Money. P. said I have your Receipt and nothing to say to you.
Letter left at Walkers, 29 Novr. 1769. Dated a day before it was left.7
Jacob Rowell. P. down from Cohoss. 1st Novr. 1769. Told me to leave my Note at Mr. Walkers. And he would pay. I did. Some time after I call'd, but Note not paid. Some time after called again and found the Letter. Sometime the next June after Balch told me, that he had wrote that he had left the Money with a Man but never said who nor where. In March he wrote me that his Money holding out better than he expected he had left it upon the Road.
{ 166 }
P. when he took up the Note, he askd me if Steel had got the Letter he wrote to me.
S. Chadwick. P. left Money with me for Rowell, fore Part of Summer before the suit. P. said nothing to me about S's ill treating him. He asked what sort of a Man S. of Haveril was accounted. I said [little?]. Brother in Law. P. resumed. S.'s Character. Nothing. Heard Webster say, if he had opportunity to talk with Ingalls before he should have got better Evidence from him.
S. Whites Deposition.8
Number of Gentlemen to Character.
Mr. Balch. I told Mr. P. the Money was not indorsed. He said he was surprized. [ . . . ] Steel offerd P. to pay if he would swear, he was very much in a Rage with P. and abusive. Quite in a Passion, and much beside himself. P. said Yes you did pay me that Money. S. said if you'l swear it, I'le pay it.
[ . . . ]Fitz. S. in a great Passion. Said the Receipt was forged. S. said he should prove he was used to doing such Things. His father had not brought him up to Colledge for Nothing.9 I told P. he would give S. an Advantage if he [went?] to Swear.
Moses Littles Deposition. Good Character.10
Jacob Chase Deposition. Went thro Chester.11
Susanna Hale and other.12
1. In JA's hand. Adams Papers, Microfilms, Reel No. 185.
2. The MS could be read “J.Q.” (Josiah Quincy), but the Minute Book lists only Lowell as counsel for Porter. Min. Bk. 93, SCJ Salem, Nov. 1772, C–12.
3. See Steel's receipt to William Wingate, in Nov. 1771, for certain goods received in payment for buildings conveyed by Steel to Wingate, SF 132246. This document was apparently put in evidence by Lowell to prove Steel's signature on his undertaking with Porter. See text at note 202 below.
4. See writ dated 16 Sept. 1769 for the Essex Inferior Court, Dec. 1769 term, in an action of the case brought by Steel against Porter & Crocker, with counts on an account annexed and in quantum valebant for 1600 hoops sold to the defendants by Steel in Sept. 1767 to the value of £5 6s. 8d. SF 132246. No documentation on the other litigation referred to has been found.
5. Mullikin was a Deputy Sheriff in Essex County, who served the writ cited in note 104 above, and apparently also acted in Porter & Crocker's earlier action against Steel.
6. Harriman appeared in person on this occasion. In his deposition dated 7 July 1770, apparently taken at Steel's request, he had testified
“That some time within a year past Asa Porter of Coors [i.e. Coös] so called and Mr. James Steel of Haverhill was at my house in Plastow and it appeared to me that they had agreed to meet at my house at that time in order to settle sum Law Bisness which had hapned between them in times past. I took notice that their seemed to be sum dispute between them with sum disafection in Countinence &c. and after Mr. Porter departed my house I saw Mr. Steel have in his hands a quantity of money which said Steel told me he receiv'd of said Porter on account of a Law sute which had hap'ned between them or to that porpose. But I never heard neither of them say anything concerning any money said Porter delivered said Steel in Order to pay or deliver anybody else on said Porter's Accompt nor anything else to that effect. But I cannot say it was not so for Mr. Porter seemed to have a mind to be in Privet, and accordingly had a room to themselves almost the hole of the time they were at my house together and it did not appear to me at that time that either said Porter or Steel was in the least disguised with liquor.” SF 132246.
7. See Porter to Rowell, Haverhill, 29 Nov. 1769, SF 132246: “I was not able to procure the Money for you as I expected but was oblig'd to sue a man's note in order to get you Money and supose the Money will be paid soon if you have opportunity to send your note to Mr. Benjamin Balch of Newburyport in about three weeks I expect he will be able to get the Money for you as the Court is near at hand.” The letter continues with mention of other commercial matters between Porter and Rowell.
8. Deposition of Samuel White, “Sworn in Court, Novr. Term 1772”: “That being in the Town of Newbury Port, some time between the Month of July and Month of November, in the Year 1770, where I saw James Steel and Asa Porter together, and heard Steel tell Porter, that if he would go before a Justice, and give Oath that he let him have that Money (which Money I understood said Porter had recover'd of Said Steel, at the then last July Court) that he the Said Steel would pay the Debt and Costs.” SF 132246.
9. Porter was Harvard 1762, A.M. 1765. See 12 Sibley-Shipton, Harvard Graduates 166–168; MH-Ar. No record has been found of Steel's attendance at “Colledge.” He may thus mean that Porter learned to forge receipts at Harvard.
10. Deposition of Moses Little, 2 Nov. 1772, SF 132246: “that he has been acquainted with Asa Porter when he lived in Newburyport and since he has Lived at Haverhill in the Province of New Hampshire and has dealt confidently with Said Porter and allways found him Punctual and fair in his dealings.”
11. Deposition of Jacob Chase, Chester, N.H., 2 Nov. 1772, SF 132246:
“That Asa Porter Esqr. in Haverhill in New Hampshire Came to my house in the last of November or the first of December in the year 1769 to Enquire for one Daniel Wiot and one Purkins Coth of Campton which men the said Porter parted with in Newburyport and they told me that He the said Porter told them he was Going through Haverhill in the Massachusetts to Do Some Business he had there. He likewise told me he traveled through Haverhill and Came and Lodged at Capt. Hales tavern in Hampstead and the Next morning about Eleven o Clock the said Porter came to my house and after Dinner they all went on their journey Home which was Expedient for them on account of its being Remarkable Bad traveling.”
12. Deposition of Susanah Hale and John Emmory, 30 Oct. 1772, SF 132246: “That on or aboute the firste of December AD 1769 Asa Porter of Haverhill in the province of New Hampshire Esqr. on his jorney to Cooss (as he informd us) took a Lodging at the House of Capt. Ebenezer Hales Husband of the said Susanah who keeps a Publick House in Hampstead in said Province and after Breack faste the next morning Sat oute for his intended jorney as aforesaid.”

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
{ 203 }
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
{ 204 }
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
{ 209 }
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
{ 210 }
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.”
{ 212 }
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.