Early Diary of John Adams, volume 1

[Further Notes on Civil Law, December 1758–January 1759.] <a xmlns="http://www.tei-c.org/ns/1.0" href="#EJA01d056n1" class="note" id="EJA01d056n1a">1</a> JA [Further Notes on Civil Law, December 1758–January 1759.] Adams, John
Further Notes on Civil Law, December 1758–January 1759. 1

Judicial stipulations are those which proceed from the mere Office of a Judge, as Surety vs. fraud pursuing a servant, who is in flight. Surety concerning fraud is required, when the Danger is, lest an Adversary commit a fraud upon things of ours. Surety concerning pursuing a servant, is that when an Heir promises the Legatary, that he will pursue at his own Expense a servant which is given as a Legacy, who is running away, and restore either servant or his Value. Praetorial Cautions are those which proceed from the mere Office of the Praetor, as a surety of Damage, that is and of Legacies. Damage is all Diminution of our Patrimony. A Damage not done, is that which is not yet done but which we fear will be done. A surety of a Damage, not done, is that by which, the owner of decayed Buildings engages to his Neighbor that he will repay thereafter what ever Loss or Damage shall happen by the fault of his buildings. A surety of Legacies is that by which the Heir, having given Bondsmen, engages to a Legatary to whom a Legacy is bequeathed on Condition, or at a certain day, that he on the fulfilment of the Condition, or of the day, will pay the Legacy .2 But if the owner will not give the said sureties to the Neighbor, nor the Heir to the Legatary, the Neighbour is put into possession of the decayed House by the Praetor and the Legatary into possession of the hereditary Things. It is peculiar to the Pretors Cautions to need Bondsmen. Conventional Cautions are those which are conceived by the Agreement of either Party. There are as many Kinds of these as there are of things to be contracted. Common are those which proceed as well, from the Office of Praetor, as of that of Judge, as that the Estate of a Pupill shall be safe, which is given by Tutors; and a Surety, by which, he who manages the Business of another when he doubts of a Command, he engageing that the Master shall have 3 due. Of useless Stipulations. An useless stipulation is one that has no Effect in Law. Stipulations are useless, either by Reason of the Thing, or of101 the fact included in the Stipulation, or by Reason of the Contractor, or by Reason of the form or manner of the Contract. A stipulation is useless by Reason of the Thing, if any one stipulate a Thing, which neither is, nor can be, in the nature of Things; allso a Thing which is not in Commerce, as a Thing sacred, holy, religious, public, a free man, or at least beyond the Commerce of the stipulator. Also if any one stipulate a property purely, or even the Thing plainly incertain. If any one shall promise the fact Act of another, without any Penalty annexed, also anything that is impossible, either in nature or Morals. By Reason of the Contract, if they are unqualified, as dumb, deaf, mad, infant; also, as made between a father and a son or servant and Master; also if any one shall stipulate to Another than himself unless it shall be to him to whom it is , or a Penalty is annexed.

Let me get a clear Knowledge of the Proceedings in the Courts of Probate.4 Executor, who accepts the Trust is accountable to the Judge of Probate. A Judge of Probate, by Warrant under his Hand and seal, directed to sherriff &c. to cause such suspected Person to be apprehended, and brought before such Judge to be examined and proceeded with. A Person suspected of convaying or imbezzling Part any Part of the Estate of any Person deceased, shall have been cited, pursuant to Law sentence unfinished


This entry is a continuation, without break, of JA’s notes on Van Muyden’s Tractatio on Justinian’s Institutes, entered physically at a much earlier point in the Diary Fragment; see p. 55–59, above, and editorial notes there. The present jottings are based on Van Muyden, p. 121–124, continuing the Institutes, bk. 3, title 19, and covering part of title 20.


Three or four words illegible.


Three words illegible.


Although there is no indication of a break in the MS, JA has here obviously dropped Van Muyden. The following three sentences are partly quoted and partly paraphrased from An Act for Further Regulating the Proceedings of the Courts of Probate within this Province, passed by the General Court on 5 Jan. 1753 (Mass., Province Laws , 3:639–640).