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. description begins The English Reports; 176 vols. A collection and translation into English of all the early English reporters. description ends 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. description begins Edward Coke, Reports, London, 1727; 13 parts. description ends 57a, 77 Eng. Rep. description begins The English Reports; 176 vols. A collection and translation into English of all the early English reporters. description ends 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. description begins William Salkeld, Reports of Cases in the Court of King’s Bench, with some special cases in the Courts of Chancery, Common Pleas and Exchequer, alphabetically digested under proper heads, from the 1st of William and Mary to the 10th of Anne, London, 1721–1724; 3 parts. description ends 179, 91 Eng. Rep. description begins The English Reports; 176 vols. A collection and translation into English of all the early English reporters. description ends 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 description begins Robert Gardiner, Instructor Clericalis; or, Precedents in the Court of King’s Bench and Common Pleas, for young clerks, London, 1697–1714; 6 parts. description ends 522, citing Ellis v. Box, Aleyn description begins John Aleyn, Select Cases in the King’s Bench, London, 1681. description ends 72, 82 Eng. Rep. description begins The English Reports; 176 vols. A collection and translation into English of all the early English reporters. description ends 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 Autobiography description begins Diary and Autobiography of John Adams, ed. L. H. Butterfield and others, Cambridge, Mass., 1961; 4 vols. description ends  271. 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 description begins Catalogue of the John Adams Library in the Public Library of the City of Boston, Boston, 1917. description ends 100.

6. Pitt v. Russell, 3 Lev. description begins Creswell Levinz, Reports of Cases in the Court of King’s Bench and Common Pleas, during the time of Sir R. Foster, Sir R. Hyde and Sir J. Kelyng were Chief Justices: also cases in other Courts during that time, London, 1702. description ends 19, 83 Eng. Rep. description begins The English Reports; 176 vols. A collection and translation into English of all the early English reporters. description ends 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. description begins George Croke, Reports of Cases in King’s Bench and Common Bench, Part 3, Charles, London, 1657. description ends 316, 79 Eng. Rep. description begins The English Reports; 176 vols. A collection and translation into English of all the early English reporters. description ends 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 description begins Ralph Sutton, Personal Actions at Common Law, London, 1929. description ends 118–120.

8. Lea v. Luthell, Cro. Jac. description begins George Croke, Reports of Cases in King’s Bench and Common Bench. Part 2, James, London, 1683. description ends 559, 79 Eng. Rep. description begins The English Reports; 176 vols. A collection and translation into English of all the early English reporters. description ends 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 description begins Joseph Chitty, Pleading and Parties to Actions, 2d edn., London, 1811; 2 vols. description ends 536; 2 id. at 528–529; Stephen, Pleading description begins Henry John Stephen, A Treatise on the Principles of Pleading in Civil Actions, London, 1824. description ends 251, 253, 364.

10. Anonymous, Saville 90, 123 Eng. Rep. description begins The English Reports; 176 vols. A collection and translation into English of all the early English reporters. description ends 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. description begins William Salkeld, Reports of Cases in the Court of King’s Bench, with some special cases in the Courts of Chancery, Common Pleas and Exchequer, alphabetically digested under proper heads, from the 1st of William and Mary to the 10th of Anne, London, 1721–1724; 3 parts. description ends 196, 91 Eng. Rep. description begins The English Reports; 176 vols. A collection and translation into English of all the early English reporters. description ends 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. description begins George Croke, Reports of Cases in King’s Bench and Common Bench. Part 2, James, London, 1683. description ends 634, 79 Eng. Rep. description begins The English Reports; 176 vols. A collection and translation into English of all the early English reporters. description ends 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. description begins George Croke, Reports of Cases in King’s Bench and Common Bench. Part 2, James, London, 1683. description ends 363, 79 Eng. Rep. description begins The English Reports; 176 vols. A collection and translation into English of all the early English reporters. description ends 311 (K.B. 1611), cited in margin in Horseman v. Obbins, note 12 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. description begins Modern Reports; or, Select Cases adjudged in the Courts of K.B., Chancery, C.P. and Exchequer, London, 1682–1738; 12 parts. description ends 252, 87 Eng. Rep. description begins The English Reports; 176 vols. A collection and translation into English of all the early English reporters. description ends 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. description begins Modern Reports; or, Select Cases adjudged in the Courts of K.B., Chancery, C.P. and Exchequer, London, 1682–1738; 12 parts. description ends 305, 86 Eng. Rep. description begins The English Reports; 176 vols. A collection and translation into English of all the early English reporters. description ends 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. description begins David Jenkins, Eight Centuries of Reports; or, Eight hundred cases, Exchequer-Chamber or upon Writs of Error, London, 1734. description ends 110, Case XII, 145 Eng. Rep. description begins The English Reports; 176 vols. A collection and translation into English of all the early English reporters. description ends 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. description begins William Leonard, Reports and Cases of Law in the Courts at Westminster, London, 1658. description ends 71, 74 Eng. Rep. description begins The English Reports; 176 vols. A collection and translation into English of all the early English reporters. description ends 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 description begins Henry John Stephen, A Treatise on the Principles of Pleading in Civil Actions, London, 1824. description ends 364–366; 2 Chitty, Pleading description begins Joseph Chitty, Pleading and Parties to Actions, 2d edn., London, 1811; 2 vols. description ends 528–529 notes.