Legal Papers of John Adams, volume 1

Writ of Review—Stewart et al. v. King<a xmlns="" href="#LJA01d016n1" class="note" id="LJA01d016n1a">1</a>: Cumberland Superior Court, Falmouth, June 1774 JA Writ of Review—Stewart et al. v. King: Cumberland Superior Court, Falmouth, June 1774 Adams, John
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. 115and 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 116and 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.

John Adams And the said Plaintiffs in Review likewise.9 James Sullivan John Sullivan } their attorneys

SF 139642. In the hand of Nathaniel Hatch. Caption (“Province of the Massachusetts Bay.... George the third,” &c.) omitted.


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.


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.


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.


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.


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.)


For the language used here, see p. 43, note 38 22 above.


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.


Both plea and joinder are in JA's hand, although the Sullivans signed the latter.

Cushing’s Report of the Argument<a xmlns="" href="#LJA01d017n1" class="note" id="LJA01d017n1a">1</a>: Cumberland Superior Court, Falmouth, June 1773 Cushing, William Cushing’s Report of the Argument: Cumberland Superior Court, Falmouth, June 1773 Cushing, William
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 117Wils. 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


Cushing Reports, fol. 4.


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.”


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 4 note 23 below were obviously added, by someone unknown, at a date much later than 1773.


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.”