Legal Papers of John Adams, volume 1

Opinion of Judge Trowbridge

Editorial Note

266 Prescott v. Keep; Prescott v. Priest: 1771–1776; 1771–1773 Prescott v. Keep; Prescott v. Priest: 1771–1776; 1771–1773
Prescott v. Keep; Prescott v. Priest
1771–1776; 1771–1773
Editorial Note Editorial Note
Editorial Note

Prescott v. Keep, in which Keep, Adams' client, was the original plaintiff, began with a complicated argument on a pleading point. The defendants sought to bar the action on the ground that the plaintiff had failed to join (bring in) his cotenants as coplaintiffs. The issues which seem to have been argued were whether defendants should have raised the point at the outset (that is, by plea in abatement), and whether, having pleaded the general issue, they would at the trial be prevented from introducing evidence bearing on the failure to join. If the court followed the authority set out in Adams' minutes (Document I), the answer was that, since plaintiff's writ had not averred the cotenancy, defendants would not be allowed to raise the issue at the trial. In the related case of Prescott v. Priest, the initial question was Adams' contention that the death of one of the original plaintiffs might cause the action itself to die. As Justice William Cushing's report (Document IV) shows, the court ruled that it did not; Adams was then allowed to file an answer on the merits.

Once the technicalities clear away, the Prescott cases illustrate neatly the legal problems that could arise over the right to use flowing water, here, Stony Brook in Westford. The Prescott family had long maintained a gristmill and a sawmill on the stream, near its source.1 In 1720, old Jonas Prescott, his two sons, Jonas and Benjamin,2 and three others had formed a joint venture to erect and maintain an iron forge on land owned by young Jonas slightly upstream from the mills.3 The forge, of course, depended on water power to operate its bellows.4


By a complicated and sometimes obscure series of conveyances, a five-eighths interest in the forge had come to Jonathan Keep,5 who apparently attempted to maintain and even improve the ironworks without the consent of the Prescott interests. The latter had other plans for the use of the available water, because in 1771, according to Keep, they altered the dam previously shared with the iron works and erected a new dam some thirty or forty rods upstream.

There were several issues between the parties. First, the Prescotts insisted that the original articles of 1720 governing the ironworks ought not to be construed to permit the holder of a majority interest to keep the works in operation without consent of the minority. Second, the Prescotts impugned Keep's title to the five-eighths interest; he was, they argued, merely leasing the use of the works from the Prescotts, a relationship which could terminate if the Prescotts so desired. Finally, it appears, the Prescotts claimed that, inasmuch as title to the land on which the forge stood, as well as to the relevant part of the stream itself, remained in the Prescott family, Keep had no right to the water. Keep denied all these contentions and instituted the first of the actions documented here (Document I).

Meanwhile, Keep's apprentice, Joel Priest, had on various occasions removed the flume (or sluice) lever from the Prescotts' new dam, had shut down their mill gate (thus preventing diversion of the water), and had even broken the mill dam itself. The Prescotts thereupon sued Priest directly (Documents II–IV II, III, and IV ).

In both cases the Middlesex Inferior Court judgments resulted from sham demurrers.6 Pleadings being reopened in the Superior Court, the technical arguments were determined, and after the usual continuances the matters went to trial. Adams, with Jonathan Sewall, represented Keep and Priest. The verdict for Keep was £40, but the Prescotts moved in arrest of judgment, and the matter did not conclude until 1776 when a file paper indicates that the parties settled the action.7 In the other case the jury awarded the Prescotts damages of 40s. and costs of £19 16s. 10d.8


Westford was until 1730 a part of Groton. “'June 15, 1680, on a training day, granted unto Jonas Prescott, that he should take up a piece of land at Stony brook, in reference to the setting up of a mill there.'” “'At a general town meeting at Groton, June 13, 1681: Then granted to Jonas Prescott liberty to set up his corn mill at Stony brook.'” “'An agreement made between Jonas Prescott and the town of Groton, that he, the said Prescott, have liberty to set up a saw mill at Stony brook, and to have the use of the stream ... always provided, the saw mill do not hinder the corn mill.'” Caleb Butler, History of the Town of Groton 37–38 (Boston, 1848). Later, it seems, a fulling mill was added. Deposition of Nathaniel Prentice, SF 148100.


Father of William Prescott (1727–1795), who commanded troops at Bunker Hill. Samuel A. Green, Three Historical Addresses 105–107 (Groton, 1908).


Young Jonas (actually he was 42 years old at the time) played the major role in and took the major profits from the enterprise, which was “the fourth or fifth of the kind in New England. The ore used was the variety known as bog-iron, and was procured in Groton. The 'Groton iron,' produced at the forge, was not of very good quality, being brittle, and it was not extensively used. The business was carried on until the year 1865, when the Forge Company ceased to exist.” Edwin R. Hodgman, History of the Town of Westford 243 (Lowell, Mass., 1883). The JA materials here set forth seem to refute Hodgman's thesis that during the life of the company its control rested in the hands of old Jonas' descendants. The articles of association are preserved in the file papers of Prescott v. Keep, SF 148227.


See the description of a contemporary ironworks, in which “The bellows ... are very large, and moved by water.” John Harris, Lexicon Technicum, tit. Iron (London, 1736).


Andrew Oliver prepared a list of forges and furnaces in Massachusetts in 1758, which shows the forge at Westford to be in the possession of “Keep.” Arthur C. Bining, British Regulation of the Colonial Iron Industry 126 (Phila., 1933).


SF 148100, 148227.


Min. Bk. 96, SCJ Middlesex, Oct. 1773, C–13; SF 148227. No record reference has been found.


Min. Bk. 96, SCJ Middlesex, April 1773, C–20; SCJ Rec. 1773–1774, fols. 18–19.

268 Adams’ Minutes of the Trial<a xmlns="" href="#LJA01d079n1" class="note" id="LJA01d079n1a">1</a>: Middlesex Superior Court, Cambridge, October 1773 JA


Adams’ Minutes of the Trial: Middlesex Superior Court, Cambridge, October 1773 Adams, John
Adams' Minutes of the Trial1
Middlesex Superior Court, Cambridge, October 1773
Prescott vs. Keep.

See 1. Inst. 200 b.2 to maintain this Action.

Litt. §315.3 Tenants in Common shall have personal Actions jointly.

2 Cro. 231. Some vs. Barwish.4 They shall join in Trespass and for Nusance.

2 Vent. 214.5

May be taken Advantage of under the general Issue.6

1 Vent. 214.7 Cant be given in Evidence unless one Tenant in common brings Action vs. another.

1 Mod. Ent. 31.8 If it appears on the Writ, Defendant may take Advantage of it under the general Issue.

Latch. 152, 3.9

Defendants Witnesses.

Ebenr. Hadley. Worked at the framing and raising of the new forge. Only a frame in 1770. No new Wheels. The Prescotts forbid Captn. Keep from improving. About 2 foot bigger. Captn. Keep

David Goodhue. Saw Captn. Keep pay Rent. ⅛th Part. Keep and 269Prescot ballancd Accounts. Keep gave a Note. Repairs and Improvement and Forge, Land and Water. Keep has often told me that he paid Rent for the whole that he improved and had always paid Rent to Coll. Prescott, and had Receipts till this Contention and since then they would not receive it.

Oliver Parker. Keep said he had Money for the Rent of the old Iron Works. 4 years ago. Prescot came in and Keep paid him Rent for one Year 8 dollars. Prescot said he was obliged to pay it to others. Eben. and Dr. Prescott.

Caleb Woods. Keep said they had paid Rent to the Prescotts to their Satisfaction.

Tim. Prescott. Heard Captn. Keep Say he had paid Rent for ⅝ths and had Receipts. And Jona. Keep Said he had been and tendered the Rent and they would not take it.

Gershom Fletcher. Keep told of paying Rent to the Prescotts for the Water. Keep said Prescott had a Bond and he paid untill the Bond was so full, that they could enter no more.10 Then they made Receipts.

1719. Jonas Prescots deed to Jonas the Grandfather of the Defendant,11 and the Grandfather granted one half to Ebenezer.

1749. Aug. 17. Deed from Jonas Prescott to Ebenezer, one of the defendants. ½ of all my homestead. 200 Acres.12

1727. Shipley to Eb. Prescot of ⅛ of the forge.13

Putnam.14 Plaintiff has not made out his Title to ⅝ths with any certainty. Answer his fathers Deed to him is of ⅝ths.15 Kent conveys to J. Keep ¼–i.e. 2/8ths.16 Kent to Lyman ⅜ths.17 Lymans Will18 and his Widows Deed i.e. Saml. Hunt and his Wifes Deed.19


Plaintiff has not proved any Right in Hunts Wife, i.e. Lymans Widow. Answer Saml. Kent sold to Caleb Lyman. See the deed.20

B. Prescott sells all his Right.21 Dont appear what it was.

Articles.22 To be kept up so long as the Major Part should agree to carry on these Works.23 Never the design that if one Purchased more than half the shares that he should have Power to controul the rest.

The Action must be brought upon the Articles. No support of this Action.

Keep went on in opposition to other Proprietors who forbid him going on. If he can do this he can continue them forever.

The Deed produced by Us comprehends both the Dams and both the Mills.

Whoever owns the Land on both sides, owns the Land under the stream.

By the same Reason an Action would have lain, if he had put up a Dam, a mile off.

A Dam above, may be of great Advantage. Putnam knows an Instance.

Damages. Only 1½ Ton lost making. Mem. Coal lost. And our loss 24 As Priest says.

An hole in the old Dam. Nothing more.

One Witness swears that a Passage Way has been left open there for fish. Then the sluice was made by one of the owners of this Dam—some say to set up a Malt Mill. But none set up.


Law obliges the owner of Dam to keep open a passage for fish.25

Water carried to the fulling Mill, by a sluice Way or Ditch, at the End of the Dam.

Co. Lit. §324. Notes 200b. Tit. Tenants in Common. If one Tenant in common corrupts the River, the other may have his Action on his Case.26

J. Trowbridge.

2. Black. 209.27 Fee simple conditional, base or qualified fee. Tenants of the Manor of Dale.

Ld. Ray.28 Judge Powell. A Grant so long as Bow Church stands. Or so long as J.S. has Heirs of his Body.

P. Williams. Macclesfield.29 So long as such a Tree stands.


In JA's hand. Adams Papers, Microfilms, Reel No. 185.


“If two several owners of Houses have a River in Common between them, if one of them corrupt the River, the other shall have an action upon his Case.” Coke, Littleton 200b, §323.


Coke, Littleton §315: “By this it appeareth that Tenants in Common shall have personal Actions jointly. And it is to be observed, that where damages are to be recovered for a wrong done to Tenants in Common ... and one of them shall dye, the survivor of them shall have the action.”


Some v. Barwish, Cro. Jac. 231, 79 Eng. Rep. 200 (K.B. 1610): “Where a Nusance is made to the land of two Tenants in Common, ... they shall joyn in the Action; for it is personal.”


Apparently an inadvertence for 1 Vent. 214; see note 15 7 below.


This does not relate to the preceding citation, but the state of the MS suggests that it may pertain to the citation to Mallory, Modern Entries , note 16 8 below.


Anonymous, 1 Vent. 214, 86 Eng. Rep. 144 (K.B. 1673): “In Trespass Quare clausum fregit 'tis a Plea in Abatement to say, That the Plaintiff is Tenant in Common with another: But cannot be given in Evidence upon Not Guilty, as it may where one Tenant in Common brings Trespass against the other.”


1 Mallory, Modern Entries 31: “If there be two Tenants in Common, and one only brings an Action where they ought to join; if this appears by the Plaintiff's own shewing, the Defendant may take advantage of it upon the General Issue, but if it does not appear, then it ought to be pleaded in Abatement. Latch 153.”


Harman v. Whitchlow, Latch 152, 82 Eng. Rep. 321 (K.B. 1627): If one joint tenant or tenant in common brings an action alone, and general issue pleaded, and the tenancy in common appears by the verdict, judgment for the plaintiff; the plea should have been in abatement.


The witness refers to the entry of payments on the back of the bond (or lease). This document is not in the file.


Deed, Jonas and Mary Prescott to Jonas Prescott Jr, 8 Oct. 1719; Middlesex Reg. Deeds, Lib. 19, fols. 456–457; SF 148227.


Deed, Jonas Prescott [Jr.] to Ebenezer Prescott, 17 Aug. 1749; Middlesex Reg. Deeds, Lib. 48, fols. 621–622; SF 148227.


A receipt for this deed, John Shipley to Ebenezer Prescott, 21 Oct. 1727, is in SF 148227.


James Putnam, counsel for the Prescotts.


Deed, Jabez Keep to Jonathan Keep, 22 May 1771; Middlesex Reg. Deeds, Lib. 72, fol. 1; SF 148227. JA was noting that this deed answered Putnam's argument.


Deed, Samuel Kent to Jabez Keep, 19 Nov. 1729. Middlesex Reg. Deeds, Lib. 71, fols. 56–57; SF 148227.


Deed, Samuel Kent to Caleb Lyman, 20 Mar. 1735. Middlesex Reg. Deeds, Lib. 36, fol. 120; SF 148227.


Will, Caleb Lyman, dated 18 March 1737. SF 148227.


Deed, Samuel and Susanna Hunt to Jabez Keep, 11 Sept. 1770. Middlesex Reg. Deeds, Lib. 72, fol. 317; SF 148227.


See note 25 17 above.


Deed, Benjamin Prescott to Samuel Hartheway, 29 June 1728. Middlesex Reg. Deeds, Lib. 72, fols. 479–480; SF 148227.


Articles dated 6 Feb. 1720, between Jonas Prescott, Jonas Prescott Jr. Benjamin Prescott, John Shaple, John White, and Caleb Trowbridge. The parties agreed “to build, Erect and set up, a Good strong Sufficient and Substantial Forge, Building or Works for the making of Iron by one Fire on, or by, the Brook called Stoney Brook in the Township of Groton almost at the same Place where the said Jonas Prescott has a sawmill not long in standing.” SF 148227.


“We the Parties above-named do Covenant consent and agree that when and so soon as the Greater part of the Owners abovesaid their heirs, or Assigns shall conclude and agree to Let alone and cease Improving of the said Forge, or Iron Works for the Use aforesaid. The Irons, other Tools and materials, shall be sold and the money that shall be received for them shall be Divided, and Shared betwixt us, our heirs &c. In Proportion, to what Each one is to Pay, as aforesaid or Otherwise disposed of as the Major Part of us shall Agree and conclude upon.” SF 148227.


MS unclear. But probably in response to Putnam's argument that the damages were only the iron lost when the bellows stopped, JA contended that the damages ought to include the value of the wasted fuel and (possibly) the lost profits.


Probably a reference to the Act of 15 Jan. 1742, set out in No. 34, note 14 5 .


See note 10 2 above.


Probably this should be 2 Blackstone, Commentaries *109: “A base, or qualified, fee is such a one as has a qualification subjoined thereto, and which must be determined whenever the qualification annexed to it is at an end. As in the case of a grant to A and his heirs, tenants of the manor of Dale; in this instance, whenever the heirs of A cease to be tenants of that manor, the grant is intirely defeated.”


Presumably this refers to a case in Lord Raymond's Reports, and to a dictum by John Powell (1645–1713), puisne judge of the Court of Common Pleas (1695) and the Court of Queen's Bench (1702). DNB . The editors have not been able to identify the case.


This also is from an opinion, presumably printed in Peere Williams' Reports, which the editors have not been able to identify. Thomas Parker, first Earl of Macclesfield, was Lord Chief Justice (1710) and Chancellor (1718). DNB .

Adams’ Abstract of Title<a xmlns="" href="#LJA01d080n1" class="note" id="LJA01d080n1a">1</a>: Middlesex Superior Court, Cambridge, October 1772 JA


Adams’ Abstract of Title: Middlesex Superior Court, Cambridge, October 1772 Adams, John
Adams' Abstract of Title1
Middlesex Superior Court, Cambridge, October 1772
Prescott vs. Priest.

1756. Novr. Deed from Jonas Prescott to Jonas Jnr. of Gift. ¼th.

1749. Aug. 17th. from Jonas to Ebenr. ½ of all my Homestead. Free Liberty to pass and repass by Gates and Barns.

1719. Octr. 8th. from Jonas to Jonas Jnr. All my Right in an old Dwelling House, &c. excepting

1727, 8 Jany. 28. Jonas to Jonas. ½.


David Goodhue. Jonas Esq. in Possession of Part, and Prescott that is dead of another Part.


In JA's hand. Adams Papers, Microfilms, Reel No. 185. Dated by reference to adjacent minutes on MS, Smith v. Child, which was tried sub nom. Child v. Smith at the Cambridge Superior Court Oct. 1772. Min. Bk. 96, SCJ Middlesex, Oct. 1772, N–6. Many of the deeds are in the file of Prescott v. Keep. See text at notes 19–29 11–21 .

Adams’ Minutes of the Trial<a xmlns="" href="#LJA01d081n1" class="note" id="LJA01d081n1a">1</a>: Middlesex Superior Court, Charlestown, April 1773 JA


Adams’ Minutes of the Trial: Middlesex Superior Court, Charlestown, April 1773 Adams, John
Adams' Minutes of the Trial1
Middlesex Superior Court, Charlestown, April 1773
Prescot vs. Priest.

8 Mod. page 115, 16.2 Hardwick's Cases.3

Gilbert's Hist. of Common Pleas.4


Gershorn Fletcher. 55 Years, Prescott the Grandfather of Plaintiffs, have possessed it, and Plaintiffs since and knew they possessed the Grist mill and fulling Mill,6 Keep in Possession of the Forge where the Saw mill was.

David Goodhue.7 Priest 30 Jany. 1771. took lever out of Prescotts Gate, and tossed it into the Stream. The Gate shut down. Knows Possession 8 years. Dam broke but cant say, who broke it. Heard Priest say the dam would not stand long, a Week before it was tore up.

Jona. Pierce. Priest told me that the upper Dam would not stand, that it would be tore down—the night before it was done. Plaintiffs have been in Possession. Upper dam built in 1771. Upon Prescotts Land—about 30 or 40 Rods above the other. A benefit to all alike when let out.

Moses Goodhue. Forgot what Priest said, but think he said it would not stand long. The Forge had the longest Use of the Stream, when not Water eno. for all the Mills.


Nat. Prentice.8 A Lever, Joel kicked off into the Stream. Joel came into Mill without leave, and shut down the Gate.


In JA's hand. Adams Papers, Microfilms, Reel No. 185.


Lowther et ux. v. Kelly, 8 Mod. 115, 88 Eng. Rep. 91 (K.B. 1722): Husband and wife sued on an indenture. The wife dying, the husband was allowed to proceed under the statute 8 & 9 Will. 3, c. 11 (1697), note 52 6 below.


Judge Cushing's report of the present case (Doc. IV) suggests that the case cited was Middleton v. Croft, Hardw. 395, 95 Eng. Rep. 255 (K.B. 1737): When husband and wife declare in prohibition, and take a partial judgment, and the husband dies before costs allowed, the widow may take her costs upon suggestion of the husband's death.


Gilbert, Common Pleas 242–248, treats at length the subject of abatement by the death of parties.


Francis Dana, counsel for the Prescotts.


Fulling is the process of cleansing and thickening cloth by beating and washing. OED .


Goodhue was a clothier (cloth maker) who operated the fulling mill next to the Prescotts' gristmill. Deposition of Nathaniel Prentice, SF 148100.


Prentice, who was approximately 15 years old at the time of the events in question, was then David Goodhue's apprentice. His deposition indicates that the Prescotts encouraged him to “shadow” Priest's activities around the dam and the mill. Deposition of Nathaniel Prentice, SF 148100.

Cushing’s Report of the Trial<a xmlns="" href="#LJA01d082n1" class="note" id="LJA01d082n1a">1</a>: Middlesex Superior Court, Charlestown, April 1773 Cushing, William


Cushing’s Report of the Trial: Middlesex Superior Court, Charlestown, April 1773 Cushing, William
Cushing's Report of the Trial1
Middlesex Superior Court, Charlestown, April 1773
Middlesex—Charlestown. April Term 1773. Prescott et al plaintiffs vs. Priest.

Trespass quare clausum fregit—Defendant pleads in abatement that one of the plaintiffs died since the last continuance. Demurer and joinder.

Mr. Adams in support of the plea cited Gilb. prac. Com. pleas. 242. 2482—Hardwicke's cases 395.3

Dana for plaintiff—cites 8 Mod. 115. 116.4—Bac. abr. Abatement. F. p. 7.5

Per Curiam Oliver, C.J., Hutchinson, Ropes and Cushing, J. The action survives; and by 8 & 9 W. 3., Cap. 11. “where the action survives, and one of the plaintiffs dies—it shall go on and not abate.”6 Respondeas ouster awarded unâ voce.7


Cushing Reports.


Note 42 4 above.


Note 41 3 above.


Note 40 2 above.


1 Bacon, Abridgment 7: “(F) Of Abatement by the Death of the Parties. The general Rule to be observed in this Case is, that where the Death of any Party happens, and yet the Plea is in the same Condition as if such Party were living, there such Death makes no Alteration or Abatement of the Writ. A difference has been held with Respect to Real Actions, where there are several Plaintiffs, and there is Summons and Severance (as there is in most Real Actions) that in these the Death of one of the Parties abates the Writ, but not in Personal or Mix'd Actions, where one intire Thing is to be recovered.” The word “Severance” refers to the right of several defendants to answer severally. See Stephen, Pleading 270.


8 & 9 Will. 3, c. 11, §7 (1697): “And be it ... enacted ... That if there be two or more plaintiffs or defendants, and one or more of them should die, if the cause of such action shall survive to the surviving plaintiff or plaintiffs, or against the surviving defendant or defendants, the writ or action shall not be thereby abated; but such death being suggested upon the record, the action shall proceed at the suit of the surviving plaintiff or plaintiffs against the surviving defendant or defendants.”


That is, the court unanimously ruled that defendant would file a new answer, or “answer over.”