Octr. 7th. 1760.
Waited on Mr. Gridley for his Opinion of my Declaration Lambard v. Tirrell, and for his Advice, whether to enter the Action or not.1 He says the Declaration is bad and the Writ, if Advantage is taken, will abate.
For It is a Declaration on a Parol Lease, not on a Deed, and therefore the Lessee’s Occupancy ought to be sett forth very exactly, for it is his Occupancy, not any Contract, that supports the Action.—You have declared, that Defendant by Virtue of the Demise, into the Tenements, entered, and the same Premises had, held and occupied. But you have not declared when he entered, nor how long he occupied. He might enter, and remove again from the Premises in 3 months, for ought appears on this Declaration. You have taken this Declaration from a Precedent of Lillies. But Lilly and Mallorry are not Authorities, Coke and Rastall are, and in them, the Distinction is taken between a Declaration on a Lease Parol, and one on a Deed, an Indenture. In a Declaration on an Indenture, it is not necessary to set forth when the Defendant entered nor how long he held: because by the Indenture he had a Right to enter and occupy, if he would, but whether he occupied, or not, he has indented to pay the Rent, when the time is out: But in a Declaration, on a Parol Lease, it is necessary to set forth, both when he entered and how long he stayed, because the Occupancy is the Cause and foundation of the Action. Besides you have not alledged that the Rent was to be yeilded and payd upon Demand, and this would abate the Writ.—Mr. Gridley sent me to Otis’s office to examine in Viners Abrigment, under the Title Rent, and in the Entries, i.e. Lilly, Mallorry, Coke, and Rastal, under the Title Debt, for some Authority to decide the Point whether the Exception was fatal, or not. I could find nothing in Viner, Lilly, or Mallorry, but Mr. Gridley shewed me in Coke and Rastall the Distinction taken between a Declaration on a Parol and on a Written Lease.
G. says, that an Indenture for the Year 1758, att a certain Rent; and the Lessees Continuance in the House, and the Lessors Permission to continue in the House, thro the Year 1759 without any new Indenture, or any Contract or Conversation about any Rent, is presumptive Evidence, that Each Party intended, the Rent should continue the same. The Lessees Continuance, in the House, without taking the Pains of going to the Lessor, to treat about new Terms, is sufficient Evidence of his Satisfaction with the old Terms and of his Consent to pay the old Rent. And the Lessors Permission of his Tenant to continue in the House, without taking the Pains to make a new Contract, is sufficient Evidence of his satisfaction with the old Terms, and of his Consent that they should continue.
1. JA’s client, the plaintiff, recovered £9 6s. 8d. as a result of this action in the Inferior Court; the defendant appealed to the Superior Court at its Feb. 1761 term, but did not prosecute, and judgment was affirmed (Superior Court of Judicature, Records, 1760–1762, fol. 177). The bills of costs in both courts, in JA’s hand, are in Suffolk County Court House, Early Court Files, &c., No. 81586. See JA’s argument under second entry of 17 Oct., below.
1760. Oct. 9th.
In Support of Complaint in Case Neal’s Action is not entered.1
I do not know, nor is it possible for your Honours to determine, what Reason induced the Plantiff to renounce this suit. Whether it was, because the Estate is insolvent, or because he had no Cause of Action, or because his Action was mislayed, or because his Writ was bad, which by the Way is very probable, considering who drew it, that determined the Plantiff, not to enter this Action, I cannot say, and your Honours cannot determine. It appears to your Honours, that the Defendant has been vexed and distressed by this summons, that she has been obliged to take a Journey to this Town, and to attend upon this Court, where it appears there is nothing for her to answer to. All this appears. What Motive induced the Plantiff to drop his Action does not appear, and therefore We have a Right to Costs. As Things are Circumstanced, I will own, that had this Action been commenced by any Gentleman, at this Bar, I would have dispensed [with] this Complaint, but it was drawn by a petty fogging Deputy Sheriff against whom I know it is my Duty, and I think it is my Interest to take all legall Advantages. And he himself cannot think it hard, as he has taken both illegal and iniquitous Advantages against me. Therefore I pray your Honours Judgment for Costs.—Q. If this Action should be entered, what must be done with it? Continued, or dismissed?—A Motion must be made for a Continuance or a Dismission.
1. Joseph Neal had sued the widow of Capt. Richard Brackett as administratrix of Brackett’s estate. JA drafted arguments for this case in several entries below. It is not known how the action, which was entered and continued, presumably in the Inferior Court, came out; but in the case of Joseph Neal v. Nathan Spear, which grew out of it, JA won costs by a plea in abatement of the writ (see an entry under the assigned date of Jan.? 1761, below).
1760. Oct. 11th.
Neals Action is entered so that I have two Actions to defend by Pleas in Bar and three of the Actions I entered, are to be defended, Clark is to Plead in Abatement and Tirrell and Thayer are, I suppose, to plead to issue. Clark gave a Note of Hand to Captn. Brackett in his Life time, and after his Death, on a Reckoning with the Administratrix, a Ballance was found due to the Estate upon Book, for which he gave a new Note to the Widow as Administratrix. Now I have laid both these Notes in one Declaration in Conformity to the Province Law, which forbids two Bills of Cost, upon Instruments, Bonds, Bills, Notes &c. executed by the same Party, and made payable to one and the same Person, and put in suit at the same Time. Dana pleads in Abatement, that these Notes, tho executed by the same Party, were not made payable to one and the same Person. The first was made payable to Bracket, and the second was made payable to his Wife—and cites 3rd. Salkeld 202. “A. owed to B. £20 as Executor, and £10 more in his own Right. One Action will not lie against him for the whole Money, because there must be several Judgments.” And Dana says, that soon after he began Practice, he drew a Writ upon a Note taken by an Executor, as Executor, for a Debt of his Testator, and drew the Writ as if the Note had been taken in the Executors own private Right. Auchmuty1 for the Defendant, pleaded in Abatement that the Note was given to Plaintiff as Executor, not in his own Right, and the Inferiour Court abated the Writ, but he appealed, and at the Superiour Court, got Mr. Reed to speak for him, who contended that the Words as Executor, were idle, and the Court unanimously set up his Writ.
1. Robert Auchmuty the elder (d. 1750 or 1751), a Scot trained at the Middle Temple who was prominent in the early Boston bar and other colonial affairs; from 1733 to 1741 he was judge of admiralty for New England. His son Robert was an associate of JA’s in the Suffolk bar, notably as co-counsel in the defense of Captain Preston in 1770, but he became a loyalist and left America. A sister of the younger Auchmuty, Isabella, married the lawyer and judge Benjamin Prat. (DAB description begins Allen Johnson and Dumas Malone, eds., Dictionary of American Biography, New York, 1928–1936; 20 vols. plus index and supplements. description ends , under both Auchmutys; NEHGR description begins New England Historical and Genealogical Register. description ends , 12 :69–71.)
1760. Octr. 13th. Monday.
Attended Mr. Niles’s Court this morning for John Holbrook Junior in an Action of his against Benja. Thayer Junior. Holbrook agreed with Thayer, to submit all Demands together with both Actions to 3 men.
Mr. Niles told me, that he consulted Mr. Thatcher about entering his Action against Mrs. Brackett. Thatcher told him, it was as likely that she would recover Costs against him, as that he would recover Judgment against her, And therefore advised him not to enter. Niles’s Action is exactly like Neals. How came Thatcher to advise to one Thing and Dana to another? The Answer is Dana dont care, how the Action goes. He is sure of his Fee and attendance, whether he gets or looses his Cause.
Thus I find the Bar is divided. Gridley is at a loss. He told me it was a Point of Law that would require a leisurely Examination. Thatcher is uncertain, but thinks it as likely to go in favour of the Administratrix as against her, and how much more likely he did not say. Kent says, the Administratrix will recover Costs, in Spight of the Devil, and he has recovered many a Time in such a Case.—It is a great object of Ambition to settle this Point of Law, whether a suit brought against an Administrator, who after the Commencement, Entry and several Continuances, represents the Estate Insolvent, shall be barred, and the Administrator allowed Costs?
I cannot be compelled to accept Mr. Dana’s agreement not to take Execution. And I insist upon it, if he has Judgment, he may take Execution, and if he takes Execution, what shall hinder the officer, from levying the whole Debt, and then what becomes of the Province Law, relating to insolvent Estates? The Words of the Law are “when the Estate of any Person deceased shall be insolvent, or insufficient to pay all just Debts, which the deceased owed, the same shall be set forth and distributed, among all the Creditors in Proportion to the sums to them owing, so far as the said Estate will extend.”
No Debts whatever are excepted from the Average, but Debts due to the Crown and the Charges of the last sickness and of the funeral. The Charges of the funeral, of the last sickness and Crown Debts are to be first paid, and then an Average is to be settled by Commissioners of Insolvency, before the Administrators can pay another Debt. There is no Exception of Debts legally demanded before the Representation of Insolvency. If Debts legally demanded, were to be excepted from the Average, every Debt would be excepted from the average. As soon as the Intestates Breath is gone, every Creditor will bring his Action, will make his legal Demand. If this had been Law and known to be law, 500 suits would have been brought vs. this Administratrix, within a Day after she took Administration. If this Rule of Law should be established, it would prove the Destruction of every Intestate Estate in the Province that is considerably in debt. Every Creditor would bring his suit, immediately, and thus the Costs of Suits would amount to a greater sum, oftentimes than the Debts.
It would indeed, furnish Employment to the Lawyers, and perhaps, a secret Regard to Interest has blinded some to the Inconveniences, that must attend it. I think the Point is clear, that a legal Demand, before the Representation of Insolvency cannot intitle any Creditor to recover his whole Demand.
Now the Q[uestion] is whether, if this Action should be defaulted, and Judgment made up, and Execution should issue, it would not issue for the whole sum; and if it issues for the whole sum, the sheriff must levy the whole sum. So that, if Judgment should be rendered now, the whole Demand would be recovered—for this Court cannot consider an Average, that is not yet settled.
Well, should this Action be continued, along from Court to Court, and Judgment be entered after the.1
In answer to Sewals objection, I say, that an Administrator de Bonis non, could not maintain an Action vs. this Defendant, on this Note. But the Administration of this Administratrix must bring the Action, and stand accountable to the Administrator de Bonis non, for the Money, and if this Defendant should break, or die insolvent this would be a good Account.
Her delay to represent this Estate insolvent is of no Consequence at all. She was in Hopes, the Estate would have been sufficient, and she wanted to make a Calculation between the Estate and its Debts, before she made that Representation. She did not want to give the Creditors the Trouble of making out their Claims before Commissioners, if she could pay them without it. She acted in short as every prudent Administrator would do, to save herself and family the Disgrace and Curses of Insolvency, and to save her Creditors, the Trouble of making out their Claims, but People at last grew impatient and some Gentlemen had propagated an Opinion that those who made a legal Demand before the Representation, would recover their whole Debts, and summons’s flowed in upon her from all Quarters. Several Actions were brought against her, at Plymouth Court, and several more to this Court, and she saw that Ruin would insue to herself and family if she did not.
Now had this Representation been made when she took Administration, 18 months at least would have been allowed to examine Claims. But 6 months were allowed [over?] so that the Creditors will receive their share quite as soon as they would, if it had been represented sooner.
1. Thus in MS.
1760. Octr. 17th.
What are the Questions, on which Mrs. Bracketts Bars to Danas Actions turn?—The first Question is, whether any Action at all can be maintained vs. the Administrator of an Insolvent Estate excepting for Debt due to the Crown, for sickness and funeral Charges? And the second is, whether an Action brought before the Representation of Insolvency, can be maintained, i.e. Whether an Administrator, by delaying to represent the Insolvency, makes herself liable to any suit, that is brought against her. For I take it to be very clear, that when an Estate is represented insolvent, as soon as an Administrator is appointed no Action can be maintained. All Actions must be barred, bar’d I mean for a Time, till the Commissioners have reported and the Average is settled. So that the only Question is, whether Administrators are liable to suits, till the Representation is made? And with submission I think [it] is certain that they are not. In many Cases it is well known, before a Mans Breath is gone, that he owes more than he is worth, and in such Cases the Administrator would do well to represent the Insolvency, at his first Appointment, but there are many Cases, when it is impossible for the Administrator to know whether his Intestate is solvent or insolvent, the Quantity of his Lands and goods may be unknown, and the Number and Quantity of his Debts is always unknown so that no Computation can possibly be made, and in these Cases, it is certainly reasonable and it is Law, that the Administrator should have some time to examine and calculate before he makes a Representation, for if the Estate is sufficient, it would be folly to draw upon his Intestate and himself and family the Disgrace of Insolvency, and the Curses of the Creditors needlessly, and it would be a Pitty to put the Estate to the Expence of the Commissioners, and the Creditors to the Trouble of making out their Claims before them. In all Cases therefore where it is doubtful whether the Estate is sufficient or insufficient, the Administrator ought to have time to inform himself, and in the mean time, all the Creditors must be debared from suits, or if they will bring them they must do it at their Peril, i.e. if the Estate afterwards proves insolvent, their Actions must be bared and they must pay Costs. Whether some Limitation of the time, is expedient or not, it is not our Business to inquire, if the Laws are imperfect in this respect it is the Business of the Legislature to perfect it, but Mr. Dana cannot avail him self of a Law that has no being.
Now the Case before your Honour, is of the last sort. At the Time of Capt. Bracketts Death, it was very doubtful, with every body, whether he left enough to pay his Debts or not. His Widow, on her appointment, to the Administration, told the Judge, it was uncertain, and asked time to inform herself; and she has been as diligent as she could, considering the distressed situation of her family, in making Enquiry after the Debts. She found Effects enough in her Hands to pay all the Debts that she was apprized of, and so was unwilling to make the Representation, unwilling to put the Estate to needless Charge, and Disgrace, unwilling to put her Creditors to the Trouble of making out their Claims with the Commissioners, till she was satisfyd, there was not enough. But new Creditors are daily making their Appearance, who have large demands, and some who were never so civil as to let her know she owed them, have sent her Writts. She was sued in one Action to this Court for some hundreds, on a Note that she never suspected to be in Being. In short she finds most of the real Estate under Mortgage, so that most, if not all the Personal Estate must go to discharge these Mortgages, and then the real Estate must be sold at Vendue, the Event of which is quite uncertain, and therefore the Estate is not sufficient to pay. And as the Estate is insolvent, these suits must be barred. The Law is express, that No Proscess shall be allowed. And I presume the Reason, why the Law has not confined Administrators to narrow limits, is that People [must?] be restrained from rushing on such Estates, and by stifling all the sentiments of Humanity, bringing Destruction on the fatherless and Widows.
The Time for Enquiry, whether the Estate is insolvent, or not, must be dilated on. It is a momentous Point. Must shew, that the time she has taken, is no more than reasonable.
The Administrator is not liable unless it can be shewn that she has intermeddled with the Goods and made payment of any Debt. She has never paid any Debt.
1760. Oct. 17.1
In the Beginning of May 58 Mr. Lambard, the Plantiff, gave a Lease of a House and Barn and Land in Germantown mentioned in the Writ to the Defendant Mr. Tirrell, and this Lease you will have with you. You will find by it, that Tirrill was to give  &c. the same Rent, that is sued for, in the present Action. In May 1759, i.e. at the End of the Year, Mr. Lambard went into the service, without making any new Contract, and Mr. Tirrell and his family continued in the House from that time to this. The Plantiff has frequently requested his Rent, but has been always refused, and at last he was obliged to bring his Action. As I said before there was no express Contract between the Parties, for the Year 1759, but as there was an express Contract for 58, and as the Defendant continued with his family, and as the Plantiff permitted him to continue in the House, the natural and legal Presumption is, that each Party was satisfyd with the old Terms, and intended the old Terms should continue. For had the Landlord been dissatisfyd with the Terms, it would have been his Business to have said, you must come upon a new Agreement or else leave the House, and had the Tenant been dissatisfyd he should have said I must have the Place for less Rent or else I must leave. But as each Party was silent, each Party implicitly consented that the old Conditions should remain; especially as the Terms were very reasonable. £70 old Tenor, a Year is a moderate Rent for that Place. There is a very convenient handsome new House, there is a good Barn, and several good Lotts of Land. Besides the House has had Licence for a Tavern for these 7 Years, and Mr. Tirrell has all along kept a Tavern there and does to this day. Now the single Priviledge of keeping a Tavern upon that Place is worth as much annually as this Rent. For Germantown, you all know is a Place of considerable Resort. Hardly any Gentlemen of Curiosity from any of the four Governments come to this Town, without taking a Ride to Germantown to see the Manufactures there, that of Glass and that of Stockings. Great Numbers of People go out from this Town upon Parties of Pleasure to Germantown, and there is a considerable Number of Inhabitants upon the Place and all these must be entertained and supplied, so that considering the House, Barn, Land, and these Priviledges the Rent is quite moderate, and there can be no Reason why each Party should not be confined, to those Terms, which the Defendants silence and Continuance in the House, raise a violent Presumption that he consented to, and I dont doubt, you’l give us the sum sued for accordingly.