1. In JA’s hand. Pleadings Book, p. 2. Printed with some variations in Perham, American Precedents description begins Benoni Perham, American Precedents of Declarations, Boston, 1802. description ends 135. The records and files have not been found. Perham appended the following note: “As the Dft. was to do the first act, viz. deliver the goods, it was not necessary for the Plf. to aver an offer or tender of the freight; but query, if not a time when the goods were to be delivered, and that that time was past? In order to apply the evidence, the Plf., if he cannot prove a precise time agreed on, may allege the reasonable time the law implies.” The editor of the second edition of American Precedents revised this note to state that the plaintiff should have averred a tender, “for defendant has a lien upon the goods for the freight, and payment thereof is by the contract a condition precedent. See 3 Burr. description begins James Burrow, Reports, King’s Bench, 1756–1772, London, 1766–1780; 5 vols. description ends 1499. 4 Burr. description begins James Burrow, Reports, King’s Bench, 1756–1772, London, 1766–1780; 5 vols. description ends 2218. Doug. description begins Sylvester Douglas, Reports, King’s Bench, London, 1783. description ends 104.” He also suggested that a special request for delivery or the passage of a reasonable time might have been alleged as alternatives to a specific time of delivery. American Precedents 185 (New York, 2d edn., 1810). This declaration in assumpsit is one of four declarations against masters or owners of vessels on bills of lading in the Pleadings Book. See Waldo v. Gridley, Form II; Langdon v. Barber, Form III; McLean v. McEwen, Form XVII. The declaration in the last-mentioned case is a form more in accord with later practice than that printed here. See note 60 below.

2. In JA’s hand. Pleadings Book, p. 3–5. Printed with some variations in Perham, American Precedents description begins Benoni Perham, American Precedents of Declarations, Boston, 1802. description ends 213–214. The action was filed in the Suffolk Inferior Court, where, in Oct. 1751, Jeremiah Gridley obtained a verdict in favor of Isaac Gridley for costs. See text at note 7 below. On appeal to the Superior Court in Feb. 1752 the defendant again prevailed. The Superior Court Minute Book indicates that Edmund Trowbridge filed the appeal. SCJ Rec. 1752, fol. 31; Min. Bk. 61, SCJ Suffolk, Feb. 1752, N–55. Perham put the form in a section containing actions on the case in tort, rather than under the heading “Assumpsit,” where Holden v. Conner, Form I, appeared. In later practice, at least, the remedies of assumpsit and case for negligence were concurrent and the differences in form between the pleadings were slight. Among the practical differences were that in assumpsit all parties to the contract had to be joined, the agreement between the parties had to be stated in express terms, and the common counts (note 15 below) could be joined. In tort, recovery could be had against any one of the parties, only a duty need be shown, and a count in trover could be joined. See 1 Chitty, Pleading description begins Joseph Chitty, Pleading and Parties to Actions, 2d edn., London, 1811; 2 vols. description ends 92, 134–135, 138; 2 id. at 155–161, 319–321; Joseph K. Angell, A Treatise on the Law of Carriers 366–392 (Boston, 3d edn., 1857). JA probably regarded the form of action here as assumpsit. An express contract, consideration, promise, and breach are set out. Compare Angell, Carriers 380–392. Further, the final clause (text preceding note 6 below) in effect makes the declaration one in indebitatus assumpsit, since it alleges a sum certain owing to the plaintiff and the new defendant’s presumably fictional promise to pay it. This clause does not appear in American Precedents. Its presence in the actual form may have been owing to a doubt as to the liability of the owner on the master’s contract, or for his defaults. See authorities in notes 9, 10, below. The form was probably inserted here because of its use in Langdon v. Barber, Form III. See note 8 below.

3. Here and elsewhere in the Pleadings Book, JA has omitted the description of the parties, known as the “addition,” which in this instance was “of Boston in the County of Suffolk, merchant.” SCJ Rec. 1752, fol. 31. By the English Statute of Additions, 1 Hen. 5, c. 5 (1413), in original writs and certain other processes, “in the names of defendants ... additions shall be made of their estate or degree, or mystery [i.e occupation], and of the towns, or hamlets, or places and counties, of which they were, or be, or in which they be or were conversant,” or else the writ could be abated. See 1 Chitty, Pleading description begins Joseph Chitty, Pleading and Parties to Actions, 2d edn., London, 1811; 2 vols. description ends 246–247. In Massachusetts the act prescribing forms of writs provided that the plaintiff’s addition should appear also. Act of 3 June 1701, c. 2, §1, 1 A&R description begins The Acts and Resolves, Public and Private, of the Province of the Massachusetts Bay, ed. Ellis Ames, Abner C. Goodell, et al., Boston, 1869–1922; 21 vols. description ends 460. Compare Perham, American Precedents description begins Benoni Perham, American Precedents of Declarations, Boston, 1802. description ends 90 note. The consequences of omitting the description of the plaintiff are not known, but a mistake or omission in the addition of the defendant was grounds for abatement of the writ. See Ballard v. McLean, Quincy, Reports description begins Josiah Quincy Jr., Reports of Cases Argued and Adjudged in the Superior Court of Judicature of the Province of Massachusetts Bay, between 1761 and 1772, ed. Samuel M. Quincy, Boston, 1865. description ends 106 (SCJ Suffolk, Aug. 1764); Bromfield v. Lovejoy, Quincy, Reports description begins Josiah Quincy Jr., Reports of Cases Argued and Adjudged in the Superior Court of Judicature of the Province of Massachusetts Bay, between 1761 and 1772, ed. Samuel M. Quincy, Boston, 1865. description ends 237 (SCJ Suffolk, March 1767).

4. Sums paid the master by the shipper over and above the freight for his care of the goods, and to cover expenses for lights, pilotage, and wharfage. See René de Kerchove, International Maritime Dictionary (Princeton, 1948).

5. By this time the custom of merchants was a fictional allegation which need not be proved. See 5 Holdsworth, History of English Law description begins William Holdsworth, A History of English Law, Boston and London, 1922–1952; 13 vols. description ends 144–145.

6. Here and in most of the forms in the Pleadings Book JA has abbreviated the formula known as the ad damnum, “To the Damage of the said John as he saith the sum of twenty five pounds.” SCJ Rec. 1752, fol. 31. Where damages were sought such a statement had to be included, and in actions other than debt the damages claimed were the limit of the plaintiff’s recovery. In debt nominal damages could be claimed, because it was the sum sued for itself, rather than damages, which was the object of the action, 1 Chitty, Pleading description begins Joseph Chitty, Pleading and Parties to Actions, 2d edn., London, 1811; 2 vols. description ends 397–400. The usual declaration in English practice concluded with the further phrase, “and therefore he brings his suit, etc.” (the “etc.” standing for “and good proof”). “Suit” (Latin, sectam) here meant followers or witnesses rather than action. Sutton, Personal Actions description begins Ralph Sutton, Personal Actions at Common Law, London, 1929. description ends 81–82. This conclusion was not part of the form used in Massachusetts, where by statute the last phrase was “which shall then and there be made to appear with other due damages.” See Act of 3 June 1701, c. 2, §1, 1 A&R description begins The Acts and Resolves, Public and Private, of the Province of the Massachusetts Bay, ed. Ellis Ames, Abner C. Goodell, et al., Boston, 1869–1922; 21 vols. description ends 460.

7. The proceedings in the Inferior Court. See note 2 above.

8. In JA’s hand. Pleadings Book, p. 4–5. This writ, dated 29 March 1771, was probably drawn by JA, since he was of counsel for Langdon, both in the April 1771 Suffolk Inferior Court, where Barber prevailed on a demurrer to the plea, and in the Aug. 1771 Superior Court, where the jury found a verdict for Barber. Josiah Quincy Jr. was of counsel for the latter. Min. Bk., Inf. Ct. Suffolk, April 1771, No. 205; SCJ Rec. 1771, fol. 214; Min. Bk. 95, SCJ Suffolk, Aug. 1771, N–3. SF 101888. The action, like Waldo v. Gridley, Form II, was against the owner of a vessel for goods shipped on a bill of lading. This declaration does not recite the giving of a bill of lading, but sets out the contract in the language of the bill. Compare McLean v. McEwen, Form XVII; see 2 Chitty, Pleading description begins Joseph Chitty, Pleading and Parties to Actions, 2d edn., London, 1811; 2 vols. description ends 159–161. The file copy of the writ contains a second count, virtually identical to that in Waldo, which does recite the bill. SF 101888. Like the declaration in Waldo, the count here sounds in indebitatus assumpsit by virtue of the last clause.

9. In the MS this and the following two citations appear in the margin. See 3 Bacon, Abridgment description begins Matthew Bacon, New Abridgment of the Law, London, 1736–1766; 5 vols. description ends 591: “And as the master himself is answerable . . . so likewise hath it been held, that the owners are liable to the freighters, in respect of the freight, for the embezilments, &c. of the master and mariners.” The next sentence, at p. 592, adds the qualification that “this proving a great discouragement to trade,” the statute, 7 Geo. 2, c. 15 (1734), provided that the liability of the owners for the embezzlements and other defaults of master and crew done without the owners’ privity should be limited to the value of the vessel and her pending freight. This Act was the ancestor of the present-day American statute limiting vessel owners’ liability. Grant Gilmore and Charles L. Black Jr., The Law of Admiralty 664 note (Brooklyn, 1957).

10. Boson v. Sandford, 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 321, 323, 87 Eng. Rep. description begins The English Reports; 176 vols. A collection and translation into English of all the early English reporters. description ends 212, 213 (K.B. 1690), holding that where goods were damaged through the neglect of the master of a vessel owned jointly by eight proprietors, all eight must be joined, and adding a dictum that the master need not, he being “no more than a Servant to the owners, [who] has no property either general or special, but the power he has is given by the civil law.” The report then set out “many cases where the act of the servant shall charge the master,” concluding, “Therefore though the neglect in this case was in the servant, the action may be brought against all the owners, for it is grounded quasi ex contractu, though there was no actual agreement between the plaintiff and them.”

11. Daniel Reading, The English Clerk’s Instructor in the Practice of the Court of King’s Bench, and Common Pleas, 1:341 (London, 1733), a declaration in assumpsit against the master of a vessel for not delivering goods loaded aboard his ship. JA’s citation “371” is evidently an error, since there was only one edition of Reading’s work, 1 Sweet and Maxwell, Legal Bibliography description begins W. Harold Maxwell and Leslie F. Maxwell, comps., A Legal Bibliography of the British Commonwealth of Nations: Vol. 1; English Law to 1800, 2d edn., London, 1955; C. R. Brown, P. A. Maxwell and L. F. Maxwell, comps., Vol. 3: Canadian and British-American Colonial Law, London, 1957. description ends 277.

12. A fictitious but nontraversable allegation intended to justify venue in Boston. See 1 Chitty, Pleading description begins Joseph Chitty, Pleading and Parties to Actions, 2d edn., London, 1811; 2 vols. description ends . 273; Fifoot, History and Sources description begins C. H. S. Fifoot, History and Sources of the Common Law, London, 1949. description ends 162; 5 Holdsworth, History of English Law description begins William Holdsworth, A History of English Law, Boston and London, 1922–1952; 13 vols. description ends 140–142. Compare No. 4, text at note 2.

13. In JA’s hand. Pleadings Book, p. 6. Printed with slight variations in Perham, American Precedents description begins Benoni Perham, American Precedents of Declarations, Boston, 1802. description ends 301–302. JA was Whiting’s counsel. For his minutes and the proceedings in the case, see No. 17. The declaration, dated 5 Dec. 1770, was probably drawn by Josiah Quincy Jr., who represented Abiel Hill. Min. Bk., Inf. Ct. Suffolk, Jan. 1771, No. 160. Although labeled “Ejectment,” the action is actually one in the nature of a writ of entry, one of the ancient real actions. See note 14 below; No. 17, text at notes 3–7. Asahel Stearns, citing its appearance in American Precedents 362 (Brookfield, Mass., 3d edn., 1821), called this declaration a unique form developed in Massachusetts in lieu of the English action of ejectment, which supposedly was not used in the Province. Asahel Stearns, A Summary of the Law and Practice of Real Actions 178–179, 396–398 note (Boston, 1824). Ejectment was used on occasion, however. See No. 17, note 5; Laughton v. Pitts, Form XXVI.

14. The products or profits of the land. This was a formal but necessary allegation in both a writ of right and a writ of entry, intended to show the substantial nature of the seisin under which the land was claimed. See Stearns, Real Actions 155, 364–366. The allegation “in a time of peace” was also a purely formal part of both writs, denoting activity under law at a time when the courts were open. Id. at 155–156. The form here differs from that usually found in a writ of entry in that it does not contain an allegation in the first paragraph detailing the particulars of the wrongful entry. In adopting JA’s form, Stearns grafted such allegations on to it. Id. at 442–443. Although the form is not exactly a writ of entry, it is even less a writ of right. It lacks much of the latter’s distinctive language, such as an allegation at the end of the land description that the lands were claimed “By writ of our lord the king of right”; a statement that the seisin “in his demesne as of fee” was also “as of right”; and the concluding clause, “and that such is his right he offers, &c.” In place of the latter, this form concludes with a clause such as was ordinarily used in the writ of entry. Id. at 362–364. Compare Stephen, Pleading description begins Henry John Stephen, A Treatise on the Principles of Pleading in Civil Actions, London, 1824. description ends 37.

15. In JA’s hand. Pleadings Book, p. 7–9. This writ in the case of Samuel Haynes v. Francis Shaw is dated 1 April 1768, returnable to the April 1768 Suffolk Inferior Court. It was probably drafted by Robert Auchmuty, who entered the action and was Haynes’ counsel at the Jan. 1769 Inferior Court, where Shaw won on a demurrer to the plea. Since only the first three counts printed here appear in the copy of the declaration in the file of the case, and there is no indication that the pleading was amended, JA may have added the others himself. Haynes’ appeal was entered at the March 1769 Superior Court and continued until Feb. 1771. Then, with JA now of counsel for Haynes, the matter was submitted to referees who brought in a report awarding Shaw his costs. Min. Bk., Inf. Ct. Suffolk, April 1768, No. 198; SCJ Rec. 1771, fol. 3; Min. Bk. 89, SCJ Suffolk, March 1769, N–27; id., Feb. 1771, C–14; SF 101813.

The declaration printed here is one in general assumpsit on the so-called “common counts,” statements of the same underlying indebtedness made in alternative forms in order to prevent a fatal variance between pleading and proof. The counts set out and labeled in the margin by JA include four of the “indebitatus” counts, and two of the “quantum” or “value” counts, one of which JA left incomplete. The indebitatus counts alleged very generally an indebtedness in a sum certain and a fictitious promise by the defendant to pay the debt. They were: the count on an account annexed, an “immemorial practice” in Massachusetts (see Quincy, Reports description begins Josiah Quincy Jr., Reports of Cases Argued and Adjudged in the Superior Court of Judicature of the Province of Massachusetts Bay, between 1761 and 1772, ed. Samuel M. Quincy, Boston, 1865. description ends 252 note; 1 Dane, Abridgment description begins Nathan Dane, A General Abridgment and Digest of American Law, Boston, 1824; 8 vols. description ends 174) which apparently replaced the counts for goods furnished or work performed used in England; counts for money paid by the plaintiff for the defendant and for money had and received by the defendant to the plaintiff’s use; and the count in “insimul computassent,” or on an account stated between the parties (sometimes treated as a separate variety of general assumpsit). The quantum counts were “quantum valebant” and “quantum meruit” in which the plaintiff alleged the specific goods furnished or work done and the defendant’s promise to pay what the goods or services were reasonably worth. The point of this variation was that there was no need to plead and prove the precise sum involved, but as JA has set it out, the quantum valebant count concludes with a second promise to pay a sum certain, not found in the usual English forms, which seems to defeat the ostensible purpose of the pleading. The reason for this variant and its effect have not been determined. If the clause was standard form in Massachusetts, it apparently was not taken literally. Three other JA cases show that quantum meruit rather than indebitatus assumpsit was held to be the proper form where an express price was not to be pleaded and proved. Tyler v. Richards, Quincy, Reports description begins Josiah Quincy Jr., Reports of Cases Argued and Adjudged in the Superior Court of Judicature of the Province of Massachusetts Bay, between 1761 and 1772, ed. Samuel M. Quincy, Boston, 1865. description ends 195 (SCJ Suffolk, Aug. 1765); Pynchon v. Brewster, id. at 224 (SCJ Suffolk, Aug. 1766); Glover v. Le Testue, id. at 225 note, Adams Papers, Microfilms, Reel No. 185 (SCJ Suffolk, Aug. 1770). As to the common counts generally, see Fifoot, History and Sources description begins C. H. S. Fifoot, History and Sources of the Common Law, London, 1949. description ends 358–371, 378–379, 391–394; Shipman, Common-law Pleading description begins Benjamin J. Shipman, Hand-book of Common-law Pleading, 3d edn., Ballantine, 1923. description ends 152–167, 259–263; Perham, American Precedents description begins Benoni Perham, American Precedents of Declarations, Boston, 1802. description ends 95–108. See also No. 12, text at notes 22–28, 32–36, 122–126.

16. The MS breaks off here.

17. In JA’s hand. Pleadings Book, p. 10–11. Printed, with slight variations, in Perham, American Precedents description begins Benoni Perham, American Precedents of Declarations, Boston, 1802. description ends 329–330. The writ, dated 7 Jan. 1771, and filed in April 1771 at the Suffolk Inferior Court, was presumably prepared by Samuel Fitch, who entered the action. Samuel Quincy appeared for Richards at the Jan. 1772 Inferior Court, where Doble, represented by JA, obtained a jury verdict. On appeal to the Superior Court, with Fitch now alone and JA still of counsel for Doble, Richards discontinued in Aug. 1773. Min. Bk., Inf. Ct. Suffolk, April 1771, No. 309; Jan. 1772, No. 40; SCJ Rec. 1773, fol. 104; Min. Bk. 98, SCJ Suffolk, Aug. 1773, C–33; SF 102288. See JA’s minutes of the Inferior Court trial, Adams Papers, Microfilms, Reel No. 185. See also Boston Gazette, 24 Dec. 1770, p. 3, col. 2.

This action of trespass for assault arose out of the tarring and feathering on 18 May 1770 of Owen Richards, a minor customs official, who had been involved in the case of John Hancock’s Lydia in 1768. See No. 46, note 2. Richards also sued at least two other assailants, whom JA represented. Benjamin Jones won a verdict against him at the July 1771 Inferior Court, the appeal being dropped in Aug. 1777. Richards v. Jones, Min. Bk. 103, SCJ Suffolk, Aug. 1777, C–19; SF 102532; see JA’s minutes of the Inferior Court trial, Adams Papers, Microfilms, Reel No. 185. Against Joseph Heakley, Richards had better luck, winning a verdict at the Aug. 1772 Superior Court after losing before a jury at the Inferior Court in April 1772. Richards v. Heakley, Min. Bk. 95, SCJ Suffolk, Aug. 1772, N–27; SF 102127. JA’s Office Book, April 1771 Suffolk Inferior Court, MQA, shows a fee of 24s. in Doble’s case and fees of 12s. and 48s. in the case of Richards v. “Joseph Aikley” [Heakley]. With the latter entry JA noted: “at Elizabeth Winship’s Instance.” Richards had incurred the wrath of the mob (still inflamed by the aftermath of the Boston Massacre, Nos. 63, 64), when, according to Quincy’s argument for him in Jones description begins E. Alfred Jones, The Loyalists of Massachusetts: Their Memorials, Petitions and Claims, London, 1930. description ends , he had seized “A Vessell from Connecticutt, at noon day in the open Breach of the Acts of Trade. He was informed of it, and went to see her, and there by his own View and his oath he was obliged to seize her. In the afternoon, he was going down to the Vessell and was surrounded by a Multitude and tarred, feathered, and carted, and lost his Cloaths, Money, and Papers to the Amount of near £20 st. And in order to satiate their abandoned Brutality, they set fire to the Feathers as they stuck in the Tar, upon his naked back.” JA’s minutes, Richards v. Jones, cited above. See also Boston Gazette, 21 May 1770, p. 3, col. 1; Rowe, Letters and Diary description begins Letters and Diary of John Rowe, Boston Merchant, 1759–1762, 1764–1779, ed. Anne Rowe Cunningham, Boston, 1903. description ends 202; Esther Forbes, Paul Revere and the World He Lived In 208–213 (Boston, 1942); Account of the Mobbing by Richards and Others, 4 New England Papers 1–2, MH. For criminal proceedings arising from the riot, see Rex v. George Hamblin, Min. Bk. 91, SCJ Suffolk, Feb. 1771; SF 89791. (JA billed John Hancock £2 8s. 6d. for services in the latter case. See JA’s account with Hancock, receipted 21 Dec. 1771, an illustration in this volume.)

18. A Portuguese gold coin, worth about 36s. OED description begins The Oxford English Dictionary, Oxford, 1933; 12 vols. and supplement. description ends .

19. In JA’s hand. Pleadings Book, p. 12–13. Probably drafted by Robert Auchmuty, who entered the action at the Jan. 1770 Suffolk Inferior Court. No files for this case have been found. The tarring and feathering which it recounts took place on 28 Oct. 1769 at the hands of a mob which formed in the aftermath of John Mein’s escape from Boston. See Rowe, Letters and Diary description begins Letters and Diary of John Rowe, Boston Merchant, 1759–1762, 1764–1779, ed. Anne Rowe Cunningham, Boston, 1903. description ends 194; No. 12, note 10. The case was decided in the defendants’ favor on demurrer at the Jan. 1770 court. An appeal under the names of “Geo. Galer Apt. vs. Eleazr. Trivett” was entered by Robert Auchmuty at the Suffolk Superior Court in March 1770. The action was dropped at the Aug. 1771 term when neither party appeared. JA’s Office Book, MQA, shows that he received a fee of 19s. 4d. from Bradley, one of the defendants, for services at the Inferior Court. See Min. Bk., Inf. Ct. Suffolk, Jan. 1770, No. 125; SCJ Rec. 1771, fol. 209; Min. Bk. 91, SCJ Suffolk, March 1770, N–33; Min. Bk. 95, SCJ Suffolk, Aug. 1771, C–38.

20. In JA’s hand. Pleadings Book, p. 14. The writ, dated 15 March 1768, may have been drafted by James Otis, who represented Ruggles in the Suffolk Inferior Court at the April 1768 term, where Doane, with Samuel Swift as counsel, prevailed on demurrer. On appeal to the Superior Court Blowers and JA appeared for Ruggles, and Auchmuty for Doane. At the Aug. 1771 term Ruggles discontinued, paying costs of £14 8s. 4d. A deposition that Doane had paid his taxes, given by a Wellfleet constable, may have been the cause. See Min. Bk., Inf. Ct. Suffolk, April 1768, No. 228; SCJ Rec. 1771, fol. 207; Min. Bk. 86, SCJ Suffolk, Aug. 1768, N–6; Min. Bk. 95, SCJ Suffolk, Aug. 1771, C–7, SF 101890.

21. Act of 28 Jan. 1764, c. 18, 4 A&R description begins The Acts and Resolves, Public and Private, of the Province of the Massachusetts Bay, ed. Ellis Ames, Abner C. Goodell, et al., Boston, 1869–1922; 21 vols. description ends 669, extended to 1 July 1770 by Act of 21 Feb. 1766, c. 33, 4 A&R description begins The Acts and Resolves, Public and Private, of the Province of the Massachusetts Bay, ed. Ellis Ames, Abner C. Goodell, et al., Boston, 1869–1922; 21 vols. description ends 859. The first section of the 1764 Act gave the collectors and constables of Boston a remedy against the agents, factors and trustees of an “absconding person” like that which “other creditors have for recovery of their debts.” Under §2, “where any person duly rated in the said town hath removed, or shall remove, out of it, into some other town in this province, ... before payment of such rates, and where, the time for payment to the respective treasurers [i.e. province, county, and town] being elapsed, the collectors or constables in the said town shall have paid the whole sums given them to collect in each year; in all such cases it shall and may be lawful for the collectors or constables of the said town ... to sue for such rates and taxes; and they shall have all the like remedies for recovery thereof, as other creditors have for recovering their proper debts.” This act was presumably passed in response to the dictum of the Superior Court in Ruddock v. Gordon, Quincy, Reports description begins Josiah Quincy Jr., Reports of Cases Argued and Adjudged in the Superior Court of Judicature of the Province of Massachusetts Bay, between 1761 and 1772, ed. Samuel M. Quincy, Boston, 1865. description ends 58, 59 (SCJ Suffolk, Feb. 1763), that no action of assumpsit lay for the recovery of taxes by a collector when the only statutory remedy was distress. See Act of 3 Oct. 1730, c. 1, §§12–17, 2 A&R description begins The Acts and Resolves, Public and Private, of the Province of the Massachusetts Bay, ed. Ellis Ames, Abner C. Goodell, et al., Boston, 1869–1922; 21 vols. description ends 552–554. An action of debt was the usual remedy in a right of action given by statute. See Shipman, Common-law Pleading description begins Benjamin J. Shipman, Hand-book of Common-law Pleading, 3d edn., Ballantine, 1923. description ends 137–138. Although it is not made explicit in the pleading, it seems probable that Doane was being sued under the second section of this act as one who had “removed.” Later one of JA’s clients, he was an extremely wealthy man, owning property in Boston as well as in Wellfleet and elsewhere. See No. 58, note 12 and Doc. I. The tax acts in question were the Act of 21 June 1765, c. 18, 4 A&R description begins The Acts and Resolves, Public and Private, of the Province of the Massachusetts Bay, ed. Ellis Ames, Abner C. Goodell, et al., Boston, 1869–1922; 21 vols. description ends 818, and the Act of 27 June 1766, c. 6, 4 A&R description begins The Acts and Resolves, Public and Private, of the Province of the Massachusetts Bay, ed. Ellis Ames, Abner C. Goodell, et al., Boston, 1869–1922; 21 vols. description ends 883.

22. The plea, nil debet (literally, “he owes nothing”), was the general issue in debt, putting in issue, “nearly everything that negatived the existence of the debt at the time of the commencement of the action.” Sutton, Personal Actions description begins Ralph Sutton, Personal Actions at Common Law, London, 1929. description ends 164. See Shipman, Common-law Pleading description begins Benjamin J. Shipman, Hand-book of Common-law Pleading, 3d edn., Ballantine, 1923. description ends 327–328. The phrase in the plea abbreviated at the “&c.” is, in full, the commonly omitted formula called the “defense”: “comes and defends the wrong and injury when and where it so behoves him, and the damages, and whatsoever else he ought to defend.” “Defends” in this context means “denies.” See note 78 below. The concluding phrase, “puts himself on the Country,” is the formal conclusion of a traverse, a pleading tendering an issue triable by jury which the other party had to accept if properly pleaded. See Sutton, Personal Actions description begins Ralph Sutton, Personal Actions at Common Law, London, 1929. description ends 81–83. The formal acceptance of the issue, known as the similiter, is omitted here. See note 52 below.

23. In JA’s hand. Pleadings Book, p. 15. The writ was dated 5 March 1771, returnable to the April 1771 Suffolk Inferior Court. It was probably drawn by JA, who received a fee of 18s. from Joshua Green at the April 1771 court. Office Book, MQA. At the July 1771 Inferior Court Joshua won a jury verdict, with Samuel Quincy appearing for him. On appeal in Feb. 1772, with JA and Quincy both as his counsel, the jury affirmed the prior verdict. See Min. Bk., Inf. Ct. Suffolk, April 1771, No. 200; SCJ Rec. 1772, fol. 17; Min. Bk. 95, SCJ Suffolk, Aug. 1771, N–5; Feb. 1772, C–56; SF 102081. According to JA’s undated minutes, a reference was “declined.” Adams Papers, Microfilms, Reel No. 185. The case arose out of the winding up of the affairs of Joseph Green, deceased, who had run a business which his son, the defendant, had apparently managed after Joseph’s death. The plaintiff, as administrator of Joseph’s widow, sought to question the son’s management.

The action of account, to require one who holds money or goods of another to render the balance due, was rarely used in England at this time, its functions having been largely superseded by the less cumbersome device of proceedings in equity. Fifoot, History and Sources description begins C. H. S. Fifoot, History and Sources of the Common Law, London, 1949. description ends 275–276. See JA’s minutes, cited above. Since there was no court of equity in Massachusetts, resort either to account or to the simpler indebitatus assumpsit for money had and received (note 20 above) was necessary. Although in later English practice assumpsit seems to have been available in all cases where account would lie, in the 18th century there was authority to the effect that it was not proper in the case of an actual account current between the parties, because of the complexity of the computation involved. See cases cited in James Barr Ames, Lectures in Legal History 117–119 (Cambridge, Mass., 1913). See also Lincoln v. Parr, 2 Keble description begins J. Keble, Reports, King’s Bench, at Westminster, London, 1685; 3 vols. description ends 781, 84 Eng. Rep. description begins The English Reports; 176 vols. A collection and translation into English of all the early English reporters. description ends 494 (K.B. 1671); Gilbert, Evidence description begins Geoffrey Gilbert, Law of Evidence by a Late Learned Judge, London, 1756. description ends 192; 2 Duncombe, Tryals per Pais 494 (London, 8th edn., 1766); 1 Dane, Abridgment description begins Nathan Dane, A General Abridgment and Digest of American Law, Boston, 1824; 8 vols. description ends 165. This authority may explain the use of the action of account here. At common law the question whether the defendant was liable to account at all was for the jury, but determination of the sums actually due was submitted by the court to auditors. Fifoot, History and Sources description begins C. H. S. Fifoot, History and Sources of the Common Law, London, 1949. description ends 273–274. In this suit, at the Inferior Court the defendant pleaded in bar that he was “never bailiff” as to part of the declaration and that he had “fully accounted” as to the rest. On amendment in the Superior Court he pleaded that he was “never receiver” as to the first count of the declaration and “never bailiff” as to the second. SF 102081. Compare the forms in John Mallory, Modern Entries in English, 1:42–43, 51 (London, 1734); see also 1 Comyns, Digest description begins J. Comyns, Digest of the Laws of England, London, 1762–1767; 5 vols. description ends 99–100; 1 Chitty, Pleading description begins Joseph Chitty, Pleading and Parties to Actions, 2d edn., London, 1811; 2 vols. description ends 483–484. Since these pleas presented issues for the jury which in both suits were resolved in the defendant’s favor, the question whether auditors should be appointed was never reached. Auditors were later expressly provided by statute in Massachusetts. Act of 17 Feb. 1786, [1784–1785] Acts and Resolves 521–522; Act of 20 Feb. 1818, [1818] Mass. description begins Massachusetts Reports, Exeter and Boston, 1804– . description ends 550–551 (Jan. Sess. 1818); see 1 Dane, Abridgment description begins Nathan Dane, A General Abridgment and Digest of American Law, Boston, 1824; 8 vols. description ends 166.

24. In 1 Mallory, Modern Entries description begins J. Mallory, Modern Entries in English; being a select collection of Pleadings in the Courts of King’s Bench, Common Pleas and Exchequer, and also all kinds of Writs, with readings and observations on the cases in the Reports, London, 1734–1735; 2 vols. description ends 48–49, appear two forms on which the two counts of this declaration seem to have been based.

25. The words “Bailiff and” are lined out in the file copy of the writ. SF 102081.

26. In JA’s hand. Pleadings Book, p. 16. The writ, dated 21 March 1771, returnable at the April Suffolk Inferior Court, was apparently drafted by JA, who entered the action. JA also was Needham’s counsel at the July 1771 court, where judgment was given for Kingsbury on a demurrer to the plea, Needham having agreed that the trial of any appeal would be final. In the Superior Court, the case was continued term by term until Feb. 1779, when the suit was dropped. See Min. Bk., Inf. Ct. Suffolk, April 1771, No. 204; July 1771, No. 73; SCJ Rec. 1779, fol. 52; Min. Bk. 95, SCJ Suffolk, Aug. 1771, N–7; Min. Bk. 103, SCJ Suffolk, Feb. 1779, C–1; SF 102598. This suit for malicious prosecution arose out of an action brought by John Needham, Ezekiel’s son, against Kingsbury at the July 1768 Suffolk Inferior Court for services performed and for a sawmill saw which Needham claimed that Kingsbury had agreed to buy, or at any rate had used and returned in damaged condition. Needham won a jury verdict for three pounds in the Inferior Court, which was reversed by a Superior Court jury at the Aug. 1768 term, and then on review in March 1769 was restored by a third verdict which included costs in the staggering amount of £79 3s. 7d. JA was Needham’s counsel at both Superior Court trials. See Min. Bk. 86, SCJ Suffolk, Aug. 1768, N–26; Min. Bk. 89, SCJ Suffolk, March 1769, N–24; SF 101254, 101352.

At the Nov. adjournment of the Aug. 1769 Superior Court term, on Kingsbury’s complaint, Ezekiel Needham was indicted on two separate indictments for perjury in his testimony at the Inferior Court trial and at the Superior Court trial in review. His wife, Dorothy Needham, was also indicted for perjury in the Inferior Court. In each indictment the charge was the same, that the witness had testified “that three or four Teeth were broken out of the Saw” in dispute, “and that the same Saw was bent and twisted and entirely spoiled.” See SF 102598, 101798, 101799, 101773. According to minutes taken by JA, probably at the trial in review, Ezekiel had testified that Kingsbury “brought the saw to my house and said it did not prove so well as he expected. The Saw was damnified, the Teeth were broke and the Saw was bent.” Adams Papers, Microfilms, Reel No. 185. At the March 1770 term two indictments were also brought against John Needham—one for forging the signatures of his witnesses to the accounts of their travel to the Superior Court, and one for subornation of perjury, charging that he had procured Samuel Frost to testify falsely as to the condition of the saw at the trial in review. See SF 101796, 101797. After several continuances, during which Ezekiel was free on bail, he was tried under the indictment covering his Inferior Court testimony at the Feb 1771 Superior Court. (On his other indictment no plea appears and the words “not compleated” are written. SF 101799.) JA’s minutes of the trial show that various witnesses testified that the saw was not damaged when Kingsbury returned it, but the saw itself was introduced in evidence and apparently had at least two or three broken teeth. Although some witnesses stated that these were broken before Kingsbury got possession, he testified himself that “This is the Saw that I carryd home to Needhams Mill. Just as it was then. I cant so well tell that the Saw was exactly so at the Time I took it. When I carryd it home, I told him that it was something rusty. There was 2 or 3. Same as it is now.” Adams Papers, Microfilms, Reel No. 185. This testimony was apparently conclusive. The jury found Ezekiel not guilty and he was discharged. At the same term Dorothy and John Needham were likewise acquitted. Min. Bk. 89, SCJ Suffolk, Feb. 1771. This prosecution was the basis of Ezekiel’s present suit.

At the Aug. 1773 term, Ezekiel was once again cited for perjury as a result of his testimony for John in a suit against the latter by Jeremiah Hall, in which Hall had finally prevailed on review. JA was again counsel for Needham in the civil suit. Min. Bk. 98, SCJ Suffolk, Feb. 1773, C–49; Aug. 1773, N–16; SF 102275, 102 2520. Needham gave his recognizance for prosecution at the next term, but no further record has been found. See note 29 below. See also Ezekiel Needham v. Jeremiah Hall, Min. Bk., Inf. Ct. Suffolk, April 1772, No. 243, a default judgment for Needham with JA of counsel.

27. In 2 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 53–57 (London, 1724), appears a discussion of malicious prosecution, followed by “A Declaration in Case for malitiously preferring an Indictment of Felony, which the Jury return’d ignoramus.”

28. 1 Mallory, Modern Entries description begins J. Mallory, Modern Entries in English; being a select collection of Pleadings in the Courts of King’s Bench, Common Pleas and Exchequer, and also all kinds of Writs, with readings and observations on the cases in the Reports, London, 1734–1735; 2 vols. description ends 160, where there appears the form of a declaration in an action on the case for wrongful prosecution for larceny. JA has followed this form almost exactly.

29. “Manner of conducting oneself in the world or in society; behaviour, mode or course of life.” OED description begins The Oxford English Dictionary, Oxford, 1933; 12 vols. and supplement. description ends .

30. The MS breaks off here. The declaration as found in the Superior Court files continued as follows:

31. Caption in JA’s hand. Title of the case and remainder of the declaration possibly in the hand of William Tudor, JA’s clerk. Pleadings Book, p. 18. The records of this case have not been found. The original of the writ, endorsed Paul Revere, dated 23 Oct. 1772, and returnable to the Jan. 1773 Suffolk Inferior Court, appears in SF 91313. According to JA’s Office Book, Jan. 1773 Suffolk Inferior Court, MQA, JA represented Lowrie. At the entry he noted “finished,” and wrote the figures £1 6s. 8d., which presumably was his fee. This is an action per quod servitum amisit (whereby he lost his services), properly brought in case, although if the servant were injured through force, trespass would also be proper. See 1 Chitty, Pleading description begins Joseph Chitty, Pleading and Parties to Actions, 2d edn., London, 1811; 2 vols. description ends 137–138. For forms, see 2 id. at 317–319; Perham, American Precedents description begins Benoni Perham, American Precedents of Declarations, Boston, 1802. description ends 209–210. The case and its aftermath are described in Forbes, Paul Revere 396; Revere “had only got David Mosely [his apprentice] back by suing the shipmaster who had seduced him away from his goldsmith shop (and considering that Mosely then turned around, married his master’s sister, Betsey, although she was much older than himself, drank too much, and was a spendthrift and a thorn in Revere’s side forever after, he may have wished he had let the boy go).” For Revere’s difficulties in later years as Mosely’s guardian, see SJC Rec. 1798–1799, fol. 38; SF 107814.

32. A note in JA’s Office Book, Jan. 1773 Suffolk Inferior Court, MQA, indicates that Lowrie was a mariner from Glasgow.

33. In JA’s hand to text at note 38 below. Remainder probably in hand of Jonathan Williams, JA’s clerk. Pleadings Book, p. 25–26, 30. JA presumably drew the writ, dated 18 Dec. 1770, since he appeared for Ruddock in the Jan. 1771 Suffolk Inferior Court, where a jury awarded JA’s client £200. JA also represented Ruddock on appeal, but in the Superior Court the case was referred. At the Feb. 1771 term a report was entered reducing his recovery to £49 14s. 4½d. Min. Bk., Inf. Ct. Suffolk, Jan. 1771, No. 235; SCJ Rec. 1771, fol. 20; Min. Bk. 91, SCJ Suffolk, Feb. 1771, N–29; SF 101820. The suit was on a charter party, a contract for the hire of a vessel. As the authorities cited in notes 34 and 35 below indicate, debt and covenant were alternative remedies in such a case where the agreement was under seal. The difference was that in covenant recovery would be limited to actual damages, while in debt the penal sum actually stated in the contract to be due in the event of breach could be sued for. See 1 Chitty, Pleading description begins Joseph Chitty, Pleading and Parties to Actions, 2d edn., London, 1811; 2 vols. description ends 112–114. The difference was of slight practical effect, since by Act of 10 Dec. 1698, c. 22, §1, 1 A&R description begins The Acts and Resolves, Public and Private, of the Province of the Massachusetts Bay, ed. Ellis Ames, Abner C. Goodell, et al., Boston, 1869–1922; 21 vols. description ends 356, the court was permitted to “chancer” a jury verdict in such a penal sum to the “just debt and damages.” Compare No. 13, note 3. Here a similar result was apparently reached by the referees. Admiralty has always claimed jurisdiction of charter parties. Today this claim is conceded because of the maritime subject matter involved, although under the “saving clause,” 28 U.S.C. description begins United States Code. description ends §1333, there is concurrent jurisdiction at common law. In the 18th century the common-law courts held that their jurisdiction was exclusive over virtually all contracts not actually made at sea to be performed at sea and used the writ of prohibition to limit the Admiralty courts accordingly. As a consequence, cases such as this seem to have been tried far more frequently before the courts of law than in Admiralty, at least in Massachusetts. See Wroth, “The Massachusetts Vice Admiralty Court and the Federal Admiralty Jurisdiction,” 6 Am. Jour. Legal Hist. description begins American Journal of Legal History. description ends 351, 360–364 (1962); Gilmore and Black, The Law of Admiralty 21, 170. Compare note 83 below.

34. 2 Mallory, Modern Entries description begins J. Mallory, Modern Entries in English; being a select collection of Pleadings in the Courts of King’s Bench, Common Pleas and Exchequer, and also all kinds of Writs, with readings and observations on the cases in the Reports, London, 1734–1735; 2 vols. description ends 1–6, contains the form of “A Declaration for Breach of Covenants in an Indenture of Charterparty, in not paying for Demurrage, Primage, the Dover Duty, and for Freight,” as well as later pleadings.

35. 2 Mallory, Modern Entries description begins J. Mallory, Modern Entries in English; being a select collection of Pleadings in the Courts of King’s Bench, Common Pleas and Exchequer, and also all kinds of Writs, with readings and observations on the cases in the Reports, London, 1734–1735; 2 vols. description ends 211–215, setting out a declaration in “Debt for £800 upon a Charterparty of Affreightment.”

36. The foregoing language literally describes the historic form of the charter party, a term derived from the Latin charta partita, “divided paper.” Although the practice had long been abandoned, originally many kinds of legal documents were written in duplicate on a single piece of paper, which was then cut in half on an irregular line running through a word. The two halves could be fitted together to prove the genuineness of the document. Another survival of this practice is the familiar opening phrase of the deed of realty, “This indenture witnesseth.” See Charles Abbott (Lord Tenterden), A Treatise of the Law Relative to Merchant Ships and Seamen 121–122 (Phila., 1st Amer. edn., 1802); Plucknett, Concise History description begins T. F. T. Plucknett, Concise History of the Common Law, 5th edn., London, 1956. description ends 612–613.

37. Despite the use of the word “demised” this does not appear to be what is today called a demise or bareboat charter, in which the owner furnishes a crewless, victual-less vessel, and the charterer becomes owner pro hac vice. See Gilmore and Black, Law of Admiralty 170–172, 215–219. The charter here is described as one of “freightment,” and it is for a single voyage. Ruddock, the owner, is also described as “Master,” suggesting that he was to retain control of the vessel for the voyage in question. Even today these elements would indicate that the owners were exercising that degree of control which would make this a voyage charter (or “charter party of affreightment,” as it is sometimes called). This would be so despite the fact that the charterers here undertook to pay “the charges for victualling and manning” the vessel (text below). See Gustavus H. Robinson, Handbook of the Law of Admiralty in the United States 594–598 (St. Paul, Minn., 1939). In the 18th century the term charter party seems to have been limited to a contract with these and other attributes of the modern voyage charter. The transaction that would now be classed as a demise charter was considered an altogether different type of contract. See Abbott, Merchant Shipping 76, 121. See also Charles Molloy, De Jure Maritimo et Navali 255–258 (London, 8th edn., 1744).

38. The remainder of the declaration is probably in the hand of Jonathan Williams.

39. The remainder of the declaration appears on p. 30 in the MS.

40. In JA’s hand. Pleadings Book, p. 27. In this case JA was of counsel for the defendants, Nathaniel Henshaw and Jonathan Williams, both at the April 1771 Suffolk Inferior Court, where a verdict was entered against them, and at the Aug. 1771 term of the Superior Court, where they lost a second time. The writ, dated 11 March 1771, was probably drawn by Josiah Quincy Jr., who entered the action. See Wendell v. Williams, Min, Bk., Inf. Ct. Suffolk, April 1771, No. 145; Henshaw v. Wendell, SCJ Rec. 1771, fol. 213; Min. Bk. 95, SCJ Suffolk, Aug. 1771, N–2; SF 101887. Both Oliver Wendell, plaintiff here, and his cotenant, Jonathan Jackson, were ancestors of United States Supreme Court Justice Oliver Wendell Holmes. Wendell was Holmes’ paternal great-grandfather; Jackson (1743–1810), father of Charles Jackson who sat on the Supreme Judicial Court from 1813 to 1824 and who wrote an important treatise on real actions, was his maternal great-grandfather. See Mark DeWolfe Howe, Justice Oliver Wendell Holmes: The Shaping Years, 1841–1870 177–180 (Cambridge, Mass., 1957). The deed under which Wendell claimed was a mortgage deed, the defendants being second mortgagees who had probably entered under their mortgage. Wendell was seeking to foreclose the mortgage as to them; he obtained a judgment for the sum actually owed him, or possession, if the sum was not paid within two months. See No. 13, note 3. Jackson, the cotenant, brought an identical suit against these defendants. See Jackson v. Williams, Min. Bk., Inf. Ct. Suffolk, April 1771, No. 124; Henshaw v. Jackson, Min. Bk. 95, SCJ Suffolk, Aug. 1771, N–1; SF 101886. JA’s minutes are in Adams Papers, Microfilms, Reel No. 185.

The action here, labeled “ejectment” in accordance with usual Massachusetts practice, was in the nature of a writ of entry, in which the plaintiff declared upon the mortgage deed (or “covenant” as JA has here called it), rather than upon his seisin as mortgagee. This practice was said to be proper where the mortgage condition was part of the deed; the pleader was required to make “profert” of the deed (tender it in court), so that the condition would sufficiently appear. Stearns, citing similar forms printed in American Precedents 354–355 (Brookfield, Mass., 3d edn., 1821), criticized the procedure for its length and complexity, adding, “In its structure indeed, it is more like an action of covenant, or on the case, than a writ of Entry,” Stearns, Real Actions 253–254, 451–452. See note 13 above. See also No. 17, notes 3–7.

41. Hog Island in Boston harbor, now the district known as Orient Heights in East Boston. Boston Streets, &c., 1910 description begins City of Boston, Street Commissioners, Streets, Alleys, Places, etc., in the City of Boston, Boston, 1910. description ends 245, 352.

42. The “profert” of the deed, note 40 above. When profert was made, the defendant could demand “oyer.” In ancient practice this literally meant a reading of the deed in court. With written pleadings, however, it merely signified that the plaintiff had to set out in the record the deed or other instrument sued upon. See Sutton, Personal Actions description begins Ralph Sutton, Personal Actions at Common Law, London, 1929. description ends 102–104. Compare Metcalf v. Hall, Form XXIII.

43. In JA’s hand. Pleadings Book, p. 28–30. The files of this case have not been located. JA was of counsel for Coburn, and Samuel Quincy for White. At the April 1771 Suffolk Inferior Court, “Tender was admitted by the plaintiff” and the jury awarded him the sum tendered (£7 6s. 8d.), but allowed the defendant costs. Min. Bk, Inf. Ct. Suffolk, April 1771, No. 186. See JA’s Office Book, April 1771, MQA. In a companion action, with tender also admitted, the plaintiff recovered £7 12s. 8d. and costs, more than the tender. Min. Bk., Inf. Ct. Suffolk, April 1771, No. 187. The pleas here were drawn by Samuel Quincy, counsel for the defendant. The plea of tender is one in which the defendant admits all or part of the liability, but asserts that he has offered to pay that part and been refused. See 1 Chitty, Pleading description begins Joseph Chitty, Pleading and Parties to Actions, 2d edn., London, 1811; 2 vols. description ends 473–474; 2 id. at 479–482. See also Sutton, Personal Actions description begins Ralph Sutton, Personal Actions at Common Law, London, 1929. description ends 160–162. Note that here the declaration apparently alleged two of the common counts (note 15 above), and that a virtually identical plea was offered to both. By way of replication, the plaintiff could deny that tender was made, or offer a variety of technical defenses to the plea. With the tender here admitted, trial must have been only on the matters which the defendant had denied. See 1 Chitty, Pleading description begins Joseph Chitty, Pleading and Parties to Actions, 2d edn., London, 1811; 2 vols. description ends 552–553; 2 id. at 645–650.

44. 2 Mallory, Modern Entries, description begins J. Mallory, Modern Entries in English; being a select collection of Pleadings in the Courts of King’s Bench, Common Pleas and Exchequer, and also all kinds of Writs, with readings and observations on the cases in the Reports, London, 1734–1735; 2 vols. description ends under the heading referred to by JA contains a reference to p. 310–312, where numerous cases on the subject are digested.

45. 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 134, 136 (London, 4th edn., 1724), two pleas of tender in the original Latin.

46. 5 Bacon, Abridgment description begins Matthew Bacon, New Abridgment of the Law, London, 1736–1766; 5 vols. description ends 1, tit. Tender and bringing Money into Court upon the common Rule. The rule, “by which the Money brought into Court is ordered to be struck out of a Declaration, is, from its being more frequently granted than that by which it is ordered that the Proceedings shall be stayed, called the common rule.” Of particular application to this case are id. at 14–19, 27.

47. See note 44 above.

48. See note 46 above.

49. “Ss,” commonly used in the statement of venue in pleadings and other forms, is said to be a contraction of scilicet, meaning “to wit.” Black, Law Dictionary description begins Henry C. Black, Black’s Law Dictionary, 4th edn., St. Paul, 1951. description ends .

50. The “common verification,” a requirement in pleadings (other than the declaration) which introduced new matter instead of offering an issue. Sutton, Personal Actions description begins Ralph Sutton, Personal Actions at Common Law, London, 1929. description ends 86. The prayer for judgment following the verification is in the form proper for a plea of tender in assumpsit. 1 Chitty, Pleading description begins Joseph Chitty, Pleading and Parties to Actions, 2d edn., London, 1811; 2 vols. description ends 539–540.

51. This portion of the pleading is in effect a plea of non assumpsit (the general issue) to that part of the plaintiff’s claim as to which no tender was alleged. See 2 Chitty, Pleading description begins Joseph Chitty, Pleading and Parties to Actions, 2d edn., London, 1811; 2 vols. description ends 480 note.

52. The “similiter,” the formal acceptance or joinder of issue required when a plea concluded “to the country.” 1 Chitty, Pleading description begins Joseph Chitty, Pleading and Parties to Actions, 2d edn., London, 1811; 2 vols. description ends 549, 570.

53. In JA’s hand. Pleadings Book, p. 31–[32]. The writ, dated 6 Feb. 1771, was probably drawn by Robert Treat Paine, who appeared for Brayton at the March 1771 Taunton Inferior Court, where the jury returned a verdict in Brayton’s favor for possession and costs. On the appeal JA joined Paine as counsel for Brayton. At the Superior Court’s Oct. 1773 term, again at Taunton, the prior judgment was affirmed. See Robinson v. Brayton, SCJ Rec. 1773, fol. 152; Min. Bk. 100, SCJ Bristol, Oct. 1773; SF 145772. The “writ of intrusion” is a form of writ of entry proper when the plaintiff (or “demandant” as he was technically known) was a remainderman or reversioner after a life estate, who had been ousted by an “intrusion” (an entry by a stranger after the life estate had terminated and before the remainderman had entered). See Stearns, Real Actions 49, 143, 179–180. For another form, see id. at 443–444. As to the requisites of pleadings in writs of entry generally, see id. at 149–161. Compare notes 13, 14, above, and No. 17, notes 3–7. Israel Brayton, plaintiff here, had received a reversionary interest in the lands in suit by devise from his grandfather, Preserved Brayton, who had died in 1761. Preserved in 1753 had assigned a life interest in the lands to his daughter-in-law, Ruth Brayton (Israel’s mother), in lieu of her dower interest in certain lands once owned by her husband John Brayton, which she had not released. Previously, in 1736 Preserved had sold or given these lands, which included those in suit, to John under a duly recorded conveyance. John sold them back to Preserved in 1743, but seemingly destroyed the deed before it could be recorded. John then sold the property to William Sherman, but in 1744 Preserved was able to obtain possession in an action of ejectment against Sherman at the Superior Court, in which he was allowed to prove the making of his deed from John and that Sherman had had actual notice of it. In 1770 Ruth Brayton died, leaving her daughter Elizabeth Brayton Robinson in possession of the premises for which Israel sued. See documentation in SF 145772 and a summary of the title in Paine’s hand in MHi:Photostats (1768). In opposition to Israel’s suit Elizabeth apparently claimed that the 1743 conveyance from John to Preserved was ineffective and that she was entitled to a share in the property under her father’s estate. JA’s minutes of the argument on this question show that he urged authorities to the effect that Preserved’s 1744 judgment could be admitted as evidence of his title, and that, in the alternative, depositions and oral testimony as to the fate of the deed and its contents were admissible. Adams Papers, Microfilms, Reel No. 185. A note with JA’s Oct. 1772 Docket records that the “Court determined unanimously that Evidence should be admitted of the Deed from Jno. Brayton to his father and of the Destruction of it,” an apparent straightforward application of the so-called best evidence rule. Although this note indicates that the question was decided in Oct. 1772, the Paine Law Notes date the argument in Oct. 1773.

54. A dwelling house, perhaps including its outbuildings and immediate surroundings. Black, Law Dictionary description begins Henry C. Black, Black’s Law Dictionary, 4th edn., St. Paul, 1951. description ends . The restraint of the Massachusetts draftsmen in employing technical terminology is admirable. Compare Mrs. Shandy’s marriage settlement in Laurence Sterne, The Life and Opinions of Tristram Shandy, Gentleman 41 (N.Y., Modern Library edn., undated): “All that the manor and lordship of Shandy, in the county of ——, with all the rights, members, and appurtenances thereof; and all and every the messuages, houses, buildings, barns, stables, orchards, gardens, backsides, tofts, crofts, garths, cottages, lands, meadows, feedings, pastures, marshes, commons, woods, underwoods, drains, fisheries, waters, and water courses;—together with all rents, reversions, services, annuities, fee farms, knights’ fees, views of frankpledge, escheats, reliefs, mines, quarries, goods and chattels of felons and fugitives, felons of themselves, and put in exigent deodands, free warrens, and all other royalties and seignories, rights and jurisdictions, privileges and hereditaments whatsoever.”

55. That is, the devise was to Israel (Preserved’s son) and to Israel’s heirs.

56. George II (1727–1760). As to these and the following phrases descriptive of Preserved Brayton’s seisin, see note 14 above.

57. Ruth Brayton was seised “as of freehold,” rather than “as of fee,” because her interest was a life estate, rather than a fee simple. See Stearns, Real Actions 153–154.

58. The basis of JA’s query has not been determined. It may have been the fact that Israel Brayton was devisee of the reversion, rather than the actual reversioner or his heir. At least in later practice the writ presumably lay in such a case, however. See Stearns, Real Actions 2, 143, 179–180, 194. Whatever the problem, it was never resolved; the action went to the jury in both courts without a question of law being formally raised. See note 53 above.

59. In JA’s hand. Pleadings Book, p. [33]. The original, dated 15 June 1771, was drafted by James Otis, who was Palmes’ counsel at the July 1771 Suffolk Inferior Court where he lost on a demurrer to the plea. Samuel Quincy represented Greenleaf. Min. Bk., Inf. Ct. Suffolk, July 1771, No. 245. The writ, in Otis’ hand, is in the Inferior Court files. At the following Superior Court, with JA and Josiah Quincy now representing Palmes, the case went to the jury, which found for the defendant. SCJ Rec. 1771, fol. 215; Min. Bk. 95, SCJ Suffolk, Aug. 1771, N–10; SF 101891. The case arose from Palmes’ status as a material witness in the Boston Massacre trials. See editorial note to Nos. 63 and 64, note 63. Greenleaf was sheriff of Suffolk County. Whitmore, Mass. Civil List description begins William H. Whitmore, comp., The Massachusetts Civil List for the Colonial and Provincial Periods, 1630–1774, Albany, 1870. description ends 79.

60. In JA’s hand. Pleadings Book, p. [34–35]. The writ, dated 31 Aug. 1770 and returnable to the Oct. 1770 Suffolk Inferior Court, was probably drafted by Samuel Fitch, who entered the action there. The Inferior Court Minute Book indicates that “Ad[ams]” represented the defendant in Jan. 1772, when £80 damages were awarded to the plaintiff on a demurrer to the plea. According to copies of the proceedings below in the Superior Court files, however, JA appeared for the plaintiff, and the defendant was represented by Josiah Quincy Jr. It is probable that the Minute Book entry is a clerical error. On appeal to the Superior Court the matter was referred, and in Feb. 1773 the defendant was awarded costs of £7 8s. 2d. Min. Bk., Inf. Ct. Suffolk, Oct. 1770, No. 280; Jan. 1772, No. 21; SCJ Rec. 1773, fol. 3; Min. Bk. 95, SCJ Suffolk, Feb. 1772, N–10; Min. Bk. 98, SCJ Suffolk, Feb. 1773, C–40; SF 102250b. Papers in the file indicate that the goods in suit were in storage at Greenoch, Scotland, where they had been unloaded at the desire of the majority of the cargo owners when the vessel had been seized in an action against her owner. The declaration is one in special assumpsit that that does not set out a bill of lading in express terms, but in reciting the contract uses the standard language of the bill. For similar forms, see 2 Chitty, Pleading description begins Joseph Chitty, Pleading and Parties to Actions, 2d edn., London, 1811; 2 vols. description ends 159–161; Perham, American Precedents description begins Benoni Perham, American Precedents of Declarations, Boston, 1802. description ends 141–142. For a similar but much simpler form, see Holden v. Conner, Form I.

61. “A small sailing vessel resembling a brig, carrying a main and foremast and a supplementary trysail mast close behind the mainmast.” OED description begins The Oxford English Dictionary, Oxford, 1933; 12 vols. and supplement. description ends .

62. In an unidentified hand, presumably that of one of JA’s clerks. Pleadings Book, p. [36–37]. The writ, dated 29 Aug. 1772, was probably drawn by JA, who was of counsel for Thomas Loring at the Plymouth Inferior Court, Oct. 1772, where judgment was entered for Mary Loring on a demurrer to the plea. At Plymouth Superior Court in May 1773, with JA still appearing for Thomas, the case was referred. At the Taunton term in Oct. 1773 the report was read, the referees awarding Thomas his debt of £240 and costs. Robert Treat Paine represented Mary in both courts. Min. Bk. 94, SCJ Plymouth, May 1773, N–5; SF 142520. (No record reference has been located.) As to the iron industry in Massachusetts, see Nos. 18–19, notes 4, 5. The size of the recovery was probably a result of the six-year statute of limitations on “all actions of debt grounded upon any lending or contract, without specialty.” Act of 20 Nov. 1770, c. 9, §2, 5 A&R description begins The Acts and Resolves, Public and Private, of the Province of the Massachusetts Bay, ed. Ellis Ames, Abner C. Goodell, et al., Boston, 1869–1922; 21 vols. description ends 110.

The action of debt for a legacy stems from a quasi-contractual feature of the action which permitted recovery where one party was under a noncontractual duty to pay money to the other. See Fifoot, History and Sources description begins C. H. S. Fifoot, History and Sources of the Common Law, London, 1949. description ends 222–223; 1 Chitty, Pleading description begins Joseph Chitty, Pleading and Parties to Actions, 2d edn., London, 1811; 2 vols. description ends 91, 102; Shipman, Common-law Pleading description begins Benjamin J. Shipman, Hand-book of Common-law Pleading, 3d edn., Ballantine, 1923. description ends 134. In England a pecuniary legacy was ordinarily sued for either in chancery or in the ecclesiastical courts. Lord Mansfield’s decisions that indebitatus assumpsit lay, because a promise could be implied from the duty to pay imposed upon the executor who had received assets, were rejected toward the end of the 18th century, on the ground that the courts of law could not adequately enforce the wishes of the testator. See Atkins v. Hill, 1 Cowp. description begins Henry Cowper, Reports, King’s Bench, 1774–1778, London, 1783. description ends 284, 98 Eng. Rep. description begins The English Reports; 176 vols. A collection and translation into English of all the early English reporters. description ends 1088 (K.B. 1775); Hawkes v. Saunders, 1 Cowp. description begins Henry Cowper, Reports, King’s Bench, 1774–1778, London, 1783. description ends 289, 98 Eng. Rep. description begins The English Reports; 176 vols. A collection and translation into English of all the early English reporters. description ends 1091 (K.B. 1782); Deeks v. Strutt, 5 T.R. description begins See Term Rep. description ends 690, 101 Eng. Rep. description begins The English Reports; 176 vols. A collection and translation into English of all the early English reporters. description ends 384 (K.B. 1794). See also Alison Reppy and Leslie J. Tompkins, Historical and Statutory Background of the Law of Wills 145–150 (Chicago, 1928); Fifoot, History and Sources description begins C. H. S. Fifoot, History and Sources of the Common Law, London, 1949. description ends 408–410, 435 note. In Massachusetts, where there were neither chancery nor ecclesiastical courts, a statute provided that all “certain” legacies might be sued for at common law. Act of 14 July 1693, c. 8, §2, 1 A&R description begins The Acts and Resolves, Public and Private, of the Province of the Massachusetts Bay, ed. Ellis Ames, Abner C. Goodell, et al., Boston, 1869–1922; 21 vols. description ends 122. The actions of debt and assumpsit were thus at least partially concurrent remedies of the legatee. Assumpsit seems to have been more commonly used because of the doctrine that debt lay only for a sum certain, which had to be proved exactly. Debt was a proper remedy, however, where, as in this case, the legacy was in the form of an annuity and only arrears were sought, the right to the annuity having ceased at the legatee’s death. See 2 Dane, Abridgement description begins Nathan Dane, A General Abridgment and Digest of American Law, Boston, 1824; 8 vols. description ends 239; 5 id. at 103–104, 119–124, 238–239; 1 Chitty, Pleading description begins Joseph Chitty, Pleading and Parties to Actions, 2d edn., London, 1811; 2 vols. description ends 107–108; Perham, American Precedents description begins Benoni Perham, American Precedents of Declarations, Boston, 1802. description ends 274–277.

63. In JA’s hand. Pleadings Book, p. [37]. The records and files of this case have not been found. The suit is one in assumpsit against an executor for a legacy based on his implied promise to pay it. See Perham, American Precedents description begins Benoni Perham, American Precedents of Declarations, Boston, 1802. description ends 140, 180–181. See generally note 62 above.

64. In the hand of one of JA’s clerks, perhaps Jonathan Williams. Pleadings Book, p. [38–39], The original writ in JA’s hand is in Suffolk Inferior Court Files, Jan. 1773, No. 71. At the end of the declaration JA wrote out a plea of the general issue (nil debet), which the defendant, Daniel Fisher, signed. JA added a joinder of issue, but the plea was apparently withdrawn in favor of a demurrer to a sham plea filed for Fisher by Josiah Quincy Jr. There is no record of the result, but it must have favored Fisher, because the Woodwards’ appeal was entered at the Feb. 1773 Superior Court. The case was settled before trial. In JA’s Docket for this term, MQA, appears the notation “Ag[ree]d. 10d. Rec’d. £2 2s. 8d. in full.” See SCJ Rec. 1773–1774, fol. 6; Min. Bk. 98, SCJ Suffolk, Feb. 1773, N–3. This suit by a residuary legatee against a surviving executor is based on the executor’s statutory duties. See note 76 below; see also note 21 above. Dr. Nathaniel Ames, the deceased executor, was the father of Fisher Ames and Dr. Nathaniel Ames Jr., whose political differences epitomized the split between Massachusetts Federalists and Jeffersonians in the forty years after the Revolution. Deborah Woodward, one of the plaintiffs, was Deborah Fisher Ames, daughter of the testator (who had died in 1766) and widow of Nathaniel Ames Sr. She married Richard Woodward on 23 Feb. 1772. Suffolk Files, Births, Marriages, Deaths, 1637–1774, No. 398. See Samuel Eliot Morison, By Land and by Sea 200–207 (N.Y., 1953); Charles Warren, Jacobin and Junto 4–5, 25 (Cambridge, Mass., 1931). For an earlier JA case between Deborah Ames and Daniel Fisher over Jeremiah Fisher’s will, see Fisher v. Ames, Min. Bk. 91, SCJ Suffolk, March 1770, C–60; Feb. 1771, C–84; SF 101627, 101882; Adams Papers, Microfilms, Reel No. 185.

65. “Samuel Louchlen” in the file copy of the writ. Suffolk Inferior Court Files, Jan. 1773, No. 71.

66. Thomas Hutchinson was judge of probate for Suffolk County from 1752 to 1769. In August of the latter year, he was succeeded by his brother, Foster. See Whitmore, Mass. Civil List description begins William H. Whitmore, comp., The Massachusetts Civil List for the Colonial and Provincial Periods, 1630–1774, Albany, 1870. description ends 80; 8 Sibley-Shipton, Harvard Graduates description begins John Langdon Sibley and Clifford K. Shipton, Biographical Sketches of Graduates of Harvard University, in Cambridge, Massachusetts, Cambridge and Boston, 1873– . description ends 163. The copyist here has omitted Hutchinson’s full title, a statement that he “proved and approved” the will, and a repetition of his name. (JA in the original had inadvertently called him “Foster” as well as “Thomas.”) Suffolk Inferior Court Files, Jan. 1773, No. 71.

67. The suit here is based upon the Act of 26 Jan. 1739, c. 23, 2 A&R description begins The Acts and Resolves, Public and Private, of the Province of the Massachusetts Bay, ed. Ellis Ames, Abner C. Goodell, et al., Boston, 1869–1922; 21 vols. description ends 977, which provided an “action of debt” for “any uncertain or residuary legatee” against an executor taking up his charge, who “against the tenor of the law in that case provided” should neglect “to give in a full and true inventory of the whole estate of the deceased, so far as is then come to his hands or knowledge, being duly served with a citation from the judge of probate to that purpose.” The executor was to forfeit £100 per month for every month’s neglect, “over and above the penalty already provided.” The earlier statute referred to is the Act of 22 Nov. 1703, c. 12, §1, 1 A&R description begins The Acts and Resolves, Public and Private, of the Province of the Massachusetts Bay, ed. Ellis Ames, Abner C. Goodell, et al., Boston, 1869–1922; 21 vols. description ends 536, providing that an executor who submitted a will to probate must within three months thereafter “(or at such further and longer time as the judge of probate shall see meet to allow, the circumstances of any estate requiring the same)” exhibit his inventory, or else give bond to pay the testator’s debts and legacies. The penalty was forfeiture of £5 a month for each month’s neglect to be recovered in accordance with a still earlier Act that established penalties for not presenting a will. That measure, the Act of 1 Nov. 1692, c. 14, §2, 1 A&R description begins The Acts and Resolves, Public and Private, of the Province of the Massachusetts Bay, ed. Ellis Ames, Abner C. Goodell, et al., Boston, 1869–1922; 21 vols. description ends 45, provided for the recovery of forfeitures “by action or information, in the inferiour court of pleas in the same county, and to be disposed of, one moiety thereof to the use of the poor of the town where the deceased person last dwelt, and the other moiety to him or them that shall inform or sue for the same.”

68. In the hand of one of JA’s clerks, probably Jonathan Williams. Pleadings Book, p. [40–42]. The records of this case have not been found. According to JA’s Office Book, Suffolk Inferior Court, Oct. 1772, MQA, he received a fee of 12s., but the writ was “Not served.” The original of the writ, first prepared for the Oct. court but redated 21 Oct. 1772 and altered to the Jan. 1773 court, appears in SF 91338. On its verso are the words, “This action is satisfied, per Robt. Pierpont.” Pierpont’s original action against William Barber was a suit on a note for £223 0s. 4d. sterling. His recovery at the April 1771 Suffolk Inferior Court was affirmed with costs in both courts on his complaint at the Aug. 1771 Superior Court when Barber did not prosecute his appeal. SCJ Rec. 1771, fol. 226; Min. Bk. 95, SCJ Suffolk, Aug. 1771, N–69; SF 101969. No copy of the execution has been found. According to the Minute Book, it was dated 9 Sept. 1771 and was “del[ivered to the] Creditor.” For another JA case involving Pierpont, see Pierpont v. Cutler, discussed in 2 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  8–9. Trespass on the case was the common remedy against the sheriff for his neglect, or that of his deputy, in serving process, levying execution, and the like. See 3 Dane, Abridgment description begins Nathan Dane, A General Abridgment and Digest of American Law, Boston, 1824; 8 vols. description ends 75; 1 Chitty, Pleading description begins Joseph Chitty, Pleading and Parties to Actions, 2d edn., London, 1811; 2 vols. description ends 69, 73, 140–141; 4 Bacon, Abridgment description begins Matthew Bacon, New Abridgment of the Law, London, 1736–1766; 5 vols. description ends 442. See also Quincy, Reports description begins Josiah Quincy Jr., Reports of Cases Argued and Adjudged in the Superior Court of Judicature of the Province of Massachusetts Bay, between 1761 and 1772, ed. Samuel M. Quincy, Boston, 1865. description ends 295–296. For forms, see Perham, American Precedents description begins Benoni Perham, American Precedents of Declarations, Boston, 1802. description ends 222–231; 2 Chitty, Pleading description begins Joseph Chitty, Pleading and Parties to Actions, 2d edn., London, 1811; 2 vols. description ends 352–355.

69. The form of the writ of execution in personal actions is prescribed in the Act of 3 June 1701, c. 2, §1, 1 A&R description begins The Acts and Resolves, Public and Private, of the Province of the Massachusetts Bay, ed. Ellis Ames, Abner C. Goodell, et al., Boston, 1869–1922; 21 vols. description ends 460, and discussed at length in the dissenting opinion of Trowbridge, J., in Richmond v. Davis, Quincy, Reports description begins Josiah Quincy Jr., Reports of Cases Argued and Adjudged in the Superior Court of Judicature of the Province of Massachusetts Bay, between 1761 and 1772, ed. Samuel M. Quincy, Boston, 1865. description ends 279–297 (SCJ Suffolk, March 1768). It called upon the sheriff or his deputy to render to the judgment creditor the cash value of his judgment in “the goods, chattels or lands” of the debtor, if they were acceptable to the creditor; otherwise the body of the debtor was to be taken and held until the debt was satisfied or discharged. This writ combined the features of the English elegit and capias ad satisfaciendum, but did not contain the provisions of the writs of fieri facias and levari facias, under which the sheriff could sell the debtor’s land or effects and pay the creditor the proceeds. See 2 Bacon, Abridgment description begins Matthew Bacon, New Abridgment of the Law, London, 1736–1766; 5 vols. description ends 348–352. This situation was partially remedied by the Act of 14 July 1772, c. 12, 5 A&R description begins The Acts and Resolves, Public and Private, of the Province of the Massachusetts Bay, ed. Ellis Ames, Abner C. Goodell, et al., Boston, 1869–1922; 21 vols. description ends 207, by virtue of which the sheriff was empowered to sell the debtor’s chattels, apparently confirming a settled practice. See Quincy, Reports description begins Josiah Quincy Jr., Reports of Cases Argued and Adjudged in the Superior Court of Judicature of the Province of Massachusetts Bay, between 1761 and 1772, ed. Samuel M. Quincy, Boston, 1865. description ends 297 note.

70. The clause beginning “for whose default” is omitted in the file copy of the writ. SF 91338.

71. The Act of 9 April 1742, c. 22, 2 A&R description begins The Acts and Resolves, Public and Private, of the Province of the Massachusetts Bay, ed. Ellis Ames, Abner C. Goodell, et al., Boston, 1869–1922; 21 vols. description ends 1095, provided that, if an execution was returned unsatisfied or partially satisfied, the clerk of court might “ex officio, renew or make out an alias or pluries execution for the whole or the remainder, as the case may be, till the judgment be fully satisfied.”

72. Under the Act of 21 Nov. 1719, c. 9, §1, 2 A&R description begins The Acts and Resolves, Public and Private, of the Province of the Massachusetts Bay, ed. Ellis Ames, Abner C. Goodell, et al., Boston, 1869–1922; 21 vols. description ends 150, when a creditor could not be satisfied out of the debtor’s personal estate, if he “doth therefore think fit to levy upon the real estate” of the debtor, the sheriff was to proceed to have the lands appraised and an appropriate portion of them set off to the creditor.

73. The copyist has omitted the words “Of Great Britain and £3 2s. ad. Lawful Money,” which appear in the original writ. SF 91338.

74. In JA’s hand. Pleadings Book, p. [45–47]. The writ was presumably drawn by Samuel Fitch, who entered the action at the Oct. 1772 Suffolk Inferior Court. After Josiah Quincy Jr., representing McCarney, prayed oyer (note 42 above) and filed a plea in abatement (note 77 below), the case was continued for the plaintiff to file a replication. The records do not indicate who won in the Inferior Court, but it was Clark who appealed to the Aug. 1773 Superior Court. There, with Blowers and Fitch representing Clark, and JA and Quincy appearing for McCarney, the plea in abatement was overruled and the case was continued for trial. After numerous additional continuances, the action was finally “dismist the appellant being” dead, in Aug. 1777. Min. Bk., Inf. Ct. Suffolk, Oct. 1772, No. 91; SCJ Rec. 1775–1778, fol. 140; Min. Bk. 98, SCJ Suffolk, Aug. 1773, N–26; Min. Bk. 103, SCJ Suffolk, Aug. 1777, C–47.

This case, a dispute between the owners of two paper mills, illustrates the problem which arises when a stream’s water level drops so much that it cannot supply all the riparian users. The plaintiff claimed that his was the earlier mill, and that the defendant consequently was bound to shut down in a time of shortage. Thus the plaintiff relied on what has since become known as the rule of prior appropriation: “first in time is first in right.” This principle is the law in the arid West today, but it is not now followed in Massachusetts, and was not the rule at common law in England. See Maass and Zobel, “Anglo-American Water Law: Who Appropriated the Riparian Doctrine?” 10 Public Policy 109–156 (1960). The common law followed the so-called riparian principle: every bona fide riparian proprietor has an equal right to the use of the stream, and must consequently suffer a proportionate diminution of that right when the stream falls. This point was not raised by the pleadings and was never passed upon in the Superior Court, due to the action’s being dismissed. The fact that Clark seemed to rely on a prior appropriation theory suggests two possibilities: (1) he may have sought to assert a right by prescription, which would have had the same effect on the defendant as an application of the prior appropriation rule; (2) the Massachusetts lawyers may have, in substance, if not in form, followed the principle of priority. See note 92 below for a further discussion of this point. For other water cases, see Nos. 14, 18–19, 20–21.

75. Hutchinson to Lords Commissioners for Trade and Plantations, Sept. 1769, 25 Mass. Arch. 330: “I must acquaint your Lordships that a paper mill which had been erected in the Town of Milton within this Province having gone to ruin, one James Boies, who had sometimes improved this mill, about three or four years ago erected a new mill upon the same stream, about two miles distance from the former where more paper has been manufactured than had been at the former mill in the course of thirty years, and the undertaker meets with such encouragement that he is preparing to erect another paper mill near to the first mentioned and the owner of the first mill is also rebuilding that.” This mill had apparently been the source of paper for John Mein’s Chronicle (see Nos. 5 and 12). Arthur M. Schlesinger, The Colonial Merchants and the American Revolution 164 (N.Y., 1918). See Boies and Clark v. Russell, SF 91619 (Suffolk Inferior Court, 1771), for an action to collect an account for “fine Crown” paper and “foolscap.”

76. Boston Gazette, 22 Feb. 1773, p. 4, col. 1: “To be Sold. The real Estate of Richard Clark, of Milton, near the Slit-Mill, Consisting of ... upwards of Eight Acres of Land, with Half Part of the Paper Mill, and Utensils thereto belonging, with Half Part of the Negro Caesar and Half Benefit of three Apprentices. The Paper-Mill having the Command of the Water in the Summer Months.”

77. The plea in abatement was a dilatory plea going to the sufficiency of a particular writ, rather than to the merits. Because of the distaste with which the courts affected to view such pleas, it was necessary under the strict common-law rules that the different causes for abatement be pleaded in proper order or else be waived. The order was: (1) the jurisdiction of the court; (2) the capacity of the plaintiff; (3) the capacity of the defendant; (4) the count or declaration; and (5) the writ, 1 Comyns, Digest description begins J. Comyns, Digest of the Laws of England, London, 1762–1767; 5 vols. description ends 1–2. The first two matters pleaded here go to the capacity of the plaintiff. Id. at 11–14. The third item in the plea asserted a repugnancy or inconsistency in the declaration. Id. at 38–39. The fourth and fifth items seem to raise the defense of nontenure, a lack of capacity in the defendant. Id. at 27–28. Joseph Story’s comments on similar pleas are a good example of the way in which such indigenous forms were later modified to conform to English practice: “It was the common practice in this Commonwealth, till within a few years, to take all objections to the writ and declaration, by a plea in abatement. The mode of assignment was to pray judgment of the writ; and then state the various objections, however numerous or different in nature, in regular display, (as causes are assigned on special demurrer) and then conclude the whole, united in a single plea, praying judgment of the writ, that it might be quashed. In this way misnomer, coverture, infancy, misjoinder, and defects of the count were united, and judgment given according to the prayer of the plea. So that in fact all defects in the declaration, which are now stated as causes of special demurrer, were tried by pleas in abatement. It is apprehended that this practice was irregular, when compared by English rules in many respects.” Joseph Story, A Selection of Pleadings in Civil Actions 59–60 (Salem, Mass., 1805). The plea here obviously violates the common law principles of order. Moreover, it is faulty in two of the “many respects” which Story went on to enumerate: (1) It was improper to plead more than one matter in the same class. See Zuill v. Bradley, Quincy, Reports description begins Josiah Quincy Jr., Reports of Cases Argued and Adjudged in the Superior Court of Judicature of the Province of Massachusetts Bay, between 1761 and 1772, ed. Samuel M. Quincy, Boston, 1865. description ends 6, 7 (SCJ Suffolk, Aug. 1762), apparently permitting such duplicity. (2) Despite older precedents, the 18th-century English view seems to have been that defects in the declaration should be raised on demurrer. See 1 Comyns, Digest description begins J. Comyns, Digest of the Laws of England, London, 1762–1767; 5 vols. description ends 70; 5 Dane, Abridgment description begins Nathan Dane, A General Abridgment and Digest of American Law, Boston, 1824; 8 vols. description ends 708; see also 1 Chitty, Pleading description begins Joseph Chitty, Pleading and Parties to Actions, 2d edn., London, 1811; 2 vols. description ends 438, 442.

78. The “defense” presented special problems in the plea in abatement. The “full defense,” quoted in note 22 above, was in earlier practice considered improper for a plea in abatement, since it admitted most objections to jurisdiction and capacity. The correct usage was the “half defense”: “comes and defends the force and injury and says.” In the abbreviated form used here the addition of “when” was at first supposed to indicate a full defense, but later cases said that it could stand for either full or half. After three pages of learned discussion, Story concluded, “Indeed, since the common contraction of them is the same, and the Court will intend the abbreviation, either, according to the case in which they occur, ... there seems no objection to use the common form, ’comes and defends the force and injury, when, &c.’ in all cases whatsoever.” Story, Pleadings 3–4.

79. See No. 18.

80. In JA’s hand. Pleadings Book, p. [49–50]. JA, representing plaintiffs Hannah and Deborah Metcalf, filed a special demurrer to the plea printed here, which was decided in the plaintiffs’ favor at the Jan. 1773 Suffolk Inferior Court. At the Superior Court in Feb. 1773 the demurrer was argued again and the previous decision on it upheld. The case was continued for “chancery” (determination of the actual damages). At the next term, one Hannah Messenger, who had related claims against defendant Jeremiah Hall, was admitted an additional plaintiff and the case was referred, the parties agreeing not to “employ any sworn Attorney to appear for them before said Refferees.” The referees awarded the plaintiffs £105 damages and costs of £27 12s. 3d. SCJ Rec. 1773–1774, fol. 105; Min. Bk. 98, SCJ Suffolk, Feb. 1773, N–2; Aug. 1773, C–49; SF 102308. The suit was brought on a bond for £213 6s. 8d. given to Hannah and Deborah Metcalf by Hall to secure his performance of an agreement of the same date (the “sarting Articals” of the plea) under which he took control of all their real and personal estate, agreeing to pay certain debts for them and to provide for them until the funds were exhausted. According to Hall’s statement in the file, the suit was instigated by Ezekiel Needham, with whose son Hall was currently in litigation. See note 26 above. Needham, seeking to ruin Hall, had first persuaded the ladies to leave the latter’s house and had personally removed their household goods, making it impossible for Hall to perform his obligations. The statement continued, “and if this ant a most wicked abusive transaction done to me who have almost put my life in my hand in their troubles and all because I ask them for my Just Right which is as justly due to me Now as ever a Copper was due to any Man on Earth.” Hall’s account is borne out by the fact that Needham endorsed the Metcalfs’ writ, but there was also testimony in the file that Hall had not been taking proper care of his charges. SF 102308.

The plea printed here was presumably drawn by Josiah Quincy Jr., who represented Hall in the Inferior Court. Oyer of the bond and condition (note 42 above) was followed by an affirmative plea of performance. JA’s demurrer (SF 102308) began with a clause “protesting” that Hall had not performed his obligation as he had pleaded. This was a protestando, used in a plea or replication that traversed only part of a preceding pleading to avoid a conclusive admission of the part not traversed. The device was ordinarily not used in a demurrer, perhaps on the assumption that admissions on demurrer were not conclusive in any event. There was little or no authority to the latter effect in the 18th century, however, and occasional examples of the practice are found. See Shipman, Common-law Pleading description begins Benjamin J. Shipman, Hand-book of Common-law Pleading, 3d edn., Ballantine, 1923. description ends 282–293, 358–359; Sutton, Personal Actions description begins Ralph Sutton, Personal Actions at Common Law, London, 1929. description ends 112–113, 177–179; Story, Pleadings 322–323; 6 Dane, Abridgment description begins Nathan Dane, A General Abridgment and Digest of American Law, Boston, 1824; 8 vols. description ends 213; John Lilly, Modern Entries 231 (London, 2d edn., 1741); 5 Comyns, Digest description begins J. Comyns, Digest of the Laws of England, London, 1762–1767; 5 vols. description ends 115–116, 126–127. See also Lee v. Boothby, 1 Keble description begins J. Keble, Reports, King’s Bench, at Westminster, London, 1685; 3 vols. description ends 720, 83 Eng. Rep. description begins The English Reports; 176 vols. A collection and translation into English of all the early English reporters. description ends 1205 (K.B. 1676). The remainder of the demurrer, in form similar to that in Apthorp v. Gardiner, No. 9, Doc. III, asserted that the plea was insufficient because Hall had not “set forth in certain what those Sarting Articals and Agreement indented, and bearing even date with the said Bond, made between Jeremiah Hall on the One part and Hannah Metcalf and Deborah Metcalf on the other part mentioned in the said Jeremiah’s said Plea, were in particular, as he ought to have done.” The court’s decision upholding the demurrer was in accord with English authority to the effect that when the condition of a bond was to perform the covenants in an indenture, the defendant must set out at least the substance of the indenture. See Stephen, Pleading description begins Henry John Stephen, A Treatise on the Principles of Pleading in Civil Actions, London, 1824. description ends 366–368; 2 Chitty, Pleading description begins Joseph Chitty, Pleading and Parties to Actions, 2d edn., London, 1811; 2 vols. description ends 530–532; Story, Pleadings 240–241; Jevens v. Harridge, 1 Saund. description begins E. Saunders, Les Reports des Divers Pleadings et Cases en le Court del Bank le Roy en le temp del Reign de le Roy Charles II, London, 1686–1687; 2 vols. description ends 8, 9, 85 Eng. Rep. description begins The English Reports; 176 vols. A collection and translation into English of all the early English reporters. description ends 8, 12 (K.B. 1678). The citation in the next line of the text is to Chaloner v. Davis, 3 Ld. Raym. description begins Robert, Lord Raymond, Reports, King’s Bench and Common Pleas, 3d edn., London, 1775; 3 vols. description ends 273, 92 Eng. Rep. description begins The English Reports; 176 vols. A collection and translation into English of all the early English reporters. description ends 684 (C.P. 1696), a declaration in covenant on a performance bond. See 1 Ld. Raym. description begins Robert, Lord Raymond, Reports, King’s Bench and Common Pleas, 3d edn., London, 1775; 3 vols. description ends 400, 91 Eng. Rep. description begins The English Reports; 176 vols. A collection and translation into English of all the early English reporters. description ends 1166.

81. Thus in MS, and in the file copies of the Inferior Court record and the actual bond. The file copy of the plea reads “without covent.” SF 102308. The reading in the text here seems the correct one. The meaning is probably “with all things covenanted.”

82. In the text of the file copy of the plea (SF 102308) the passage beginning “for his Part, in all Manner ...” and ending at this point is in quotes, indicating that the pleader was reciting performance in terms of the condition of the bond. This would have been sufficient had the condition not referred to covenants in the indenture. See Stephen, Pleading description begins Henry John Stephen, A Treatise on the Principles of Pleading in Civil Actions, London, 1824. description ends 362–366.

83. In JA’s hand. Pleadings Book, p. [53–55]. The writ, drawn by Samuel Fitch, is dated 27 Nov. 1772. It and the bond are in the Suffolk Inferior Court Files, Jan. 1773, No. 268. No record of subsequent pleadings or of the outcome has been found. The action of replevin was unique amoung common-law forms, in that prior to suit the plaintiff could have redelivery of a chattel alleged to have been wrongfully taken and detained by the defendant. If judgment for the plaintiff then followed, he might be awarded damages for the taking; otherwise the court ordered a return of the goods to the defendant. Unless he had not taken the goods, the defendant ordinarily pleaded a so-called “avowry” in which he justified the taking by stating affirmatively his claim to the chattel. The plaintiff then responded with a plea, and the pleadings proceeded as in other actions, but with the roles reversed. See Sutton, Personal Actions description begins Ralph Sutton, Personal Actions at Common Law, London, 1929. description ends 91–94, 166; 1 Chitty, Pleading description begins Joseph Chitty, Pleading and Parties to Actions, 2d edn., London, 1811; 2 vols. description ends 162. Replevin originally could be brought only by one injured through wrongful distress (the taking of chattels from a wrongdoer to satisfy his liability). Although Blackstone still considered the action as thus limited, it had in fact earlier been expanded by the courts to include other wrongful takings. In 18th-century England there was authority supporting the latter position, but the action seems to have been limited in practice to cases of distress. See James Barr Ames, Lectures on Legal History 69–70 (Cambridge, Mass., 1913); 3 Holdsworth, History of English Law description begins William Holdsworth, A History of English Law, Boston and London, 1922–1952; 13 vols. description ends 285 note; 1 Chitty, Pleading description begins Joseph Chitty, Pleading and Parties to Actions, 2d edn., London, 1811; 2 vols. description ends 159 note; 3 Blackstone, Commentaries description begins William Blackstone, Commentaries on the Laws of England, Oxford, 1765–1769; 4 vols. description ends “146; 4 Bacon, Abridgment description begins Matthew Bacon, New Abridgment of the Law, London, 1736–1766; 5 vols. description ends 384–385; Sir Geoffrey Gilbert, The Law of Distresses and Replevins 157–165, 257–342 (London, 1757).

In Massachusetts the Act of 10 June 1698, c. 6, §2, 1 A&R description begins The Acts and Resolves, Public and Private, of the Province of the Massachusetts Bay, ed. Ellis Ames, Abner C. Goodell, et al., Boston, 1869–1922; 21 vols. description ends 322, permitted owners of cattle taken damage-feasant to bring replevin; a later Act, prescribing a form of the writ substantially like that followed here, provided that the action could not be brought against an officer distraining goods for taxes, fines, and forfeitures. Act of 6 Dec. 1720, c. 13, §2, 2 A&R description begins The Acts and Resolves, Public and Private, of the Province of the Massachusetts Bay, ed. Ellis Ames, Abner C. Goodell, et al., Boston, 1869–1922; 21 vols. description ends 188. After the Revolution, a Massachusetts statute extended replevin to goods taken other than by distress. Act of 24 June 1789, §4, [1788–1789] Acts and Resolves 430–436. Although this enactment might be construed to mean that the prior practice had been narrower, the fact that the Act of 19 Feb. 1787, [1786–1787] Acts and Resolves 182–187, had established the writ of de homine replegiando, earlier used without statute in a slavery case, No. 40, suggests that the 1789 measure merely codified existing law. The instant case supports this view, since it does not involve a distress.

The use of replevin here is of particular interest because of the maritime nature of the subject matter. The contract of “bottomree” (i.e. bottomry), under which the plaintiffs claimed an interest, was a common device for financing marine ventures, in which the lender was secured by a lien on the vessel, but could receive payment only if she reached port safely. The transaction here was a loan to the master of a vessel for ship’s necessaries in a foreign port, for which the owners were not personally liable; the customary remedy was a libel in rem in Admiralty. This was a proceeding beyond the power of the common law, brought directly against the vessel, in which she could be seized and sold to meet demands secured by maritime liens. Although the common-law courts had severely restricted the Admiralty jurisdiction in the 18th century, this was one variety of action which, for want of another remedy, was excepted from the restriction. See Gilmore and Black, Law of Admiralty 480–519; Arthur Browne, A Compendious View of the Civil Law and of the Law of Admiralty, 2:84–85, 195–196 (London, 2d edn., 1802); Charles Molloy, De Jure Maritimo et Navali, bk. 2, c. 11, §n (London, 8th edn., 1744); 8 Holdsworth, History of English Law description begins William Holdsworth, A History of English Law, Boston and London, 1922–1952; 13 vols. description ends 261–263. This case came up at a time when the Massachusetts Vice Admiralty Court was being attacked for its role in enforcing the Acts of Trade. See vol. 2:102–104, notes 17, 22, 24. The declaration here thus may represent an ingenious attempt to avoid the necessity of proceeding in Admiralty by using the only common law form which, like a libel in rem, was concerned not with personal liability, but with rights in the res. In all probability the tactic failed. Assuming that replevin lay in a case other than distress, a wrongful taking from one with possession or the immediate right to possession was nevertheless a necessary element. See 1 Chitty, Pleading description begins Joseph Chitty, Pleading and Parties to Actions, 2d edn., London, 1811; 2 vols. description ends 158–160; Abbott, Shipping 101; Gilmore and Black, Law of Admiralty 480–482.

84. That is, discharging liens for repairs already made.

85. A civil-law term meaning a pledge in which the pledgor retained possession of the res. Black, Law Dictionary description begins Henry C. Black, Black’s Law Dictionary, 4th edn., St. Paul, 1951. description ends . In later usage the term was expressly applied to the kind of transaction here, to distinguish it from ordinary bottomry, in which a loan was made to the owner in his home port and on his personal credit, as well as on the credit of the vessel. 2 Browne, Civil Law description begins Arthur Browne, Civil Law, and ... the Law of Admiralty, 2d edn., London, 1802; 2 vols. description ends 196–197. The principal work on maritime law in use before the Revolution did not make the distinction, however. See Molloy, De Jure Maritimo, bk. 2, c. 11, §11.

86. Possibly in the hand o£ Nathan Rice, JA’s clerk. Pleadings Book, p. [56]. The action was commenced, with Thomas Flucker, secretary of the Province, as co-plaintiff, in the April 1773 Suffolk Inferior Court; the writ, dated 10 Feb. 1773, is in JA’s hand. Suffolk Inferior Court Files, April 1773, No. 217. Noyes defaulted, and judgment of £39 13s. 10d. and costs was entered. (No explanation appears for the two-shilling discrepancy between this figure and the figures in the declaration.) At the Aug. 1773 Suffolk Superior Court, the defendant failed to prosecute his appeal, and judgment was entered for plaintiffs on an affirmation in the sum of £40 9s. 4d. and £4 11s. costs. SCJ Rec. 1773–1774, fol. 113; Min. Bk. 98, SCJ Suffolk, Aug. 1773, N–47; SF 102305. JA represented Palmer; Benjamin Kent, Noyes. The file papers indicate that the original action concerned payment for 69 hats and two pieces of “English duck.” The defendant defaulted. Min. Bk., Inf. Ct. Suffolk, Oct. 1771, No. 139.

A recent statute had created a direct “action of debt” on a judgment. Act of 6 March 1773, c. 32, 5 A&R description begins The Acts and Resolves, Public and Private, of the Province of the Massachusetts Bay, ed. Ellis Ames, Abner C. Goodell, et al., Boston, 1869–1922; 21 vols. description ends 231, 232. Ostensibly, this statute merely remedied the problem that arose because “when judgment is rendered, if the party obtaining it dies, no execution can be sued out thereon, without a writ of scire facias being first brought and prosecuted with effect; and because, upon a writ of scire facias, neither the goods or estate of the debtor can be attached, nor his body taken, the debt may be lost.” (A scire facias had the effect of reviving the judgment, but a new execution was necessary. R. Pound and T. F. T. Plucknett, Readings on the History and System of the Common Law 449 [Rochester, N.Y., 3d edn., 1927].) But the statute is very broad, and provides that “when judgment is given in any court of record, and remaineth in force, the party obtaining it, his or their executors or administrators, may, instead of a writ of scire facias, have and maintain an action of debt upon such judgment, in the same court where the record thereof remaineth.” 5 A&R description begins The Acts and Resolves, Public and Private, of the Province of the Massachusetts Bay, ed. Ellis Ames, Abner C. Goodell, et al., Boston, 1869–1922; 21 vols. description ends 232. This is the only Province statute on the point, but the action of debt on a judgment was used in Massachusetts before 1773. See, for example, Tirrell v. Clark, SF 85178 (Suffolk Inferior Court 1764), in which JA drew a writ almost identical to the one here. For later forms, see Perham, American Precedents description begins Benoni Perham, American Precedents of Declarations, Boston, 1802. description ends 271–272.

The statute seems to have embodied the English rule that if a plaintiff “hath once obtained a judgment against another for a certain sum, and neglects to take out execution thereupon, he may afterwards bring an action of debt upon this judgment, and shall not be put upon the proof of the original cause of action; but upon shewing the judgment once obtained, still in full force, and yet unsatisfied, the law immediately implies, that by the original contract of society the defendant hath contracted a debt, and is bound to pay it. ... [But] actions of debt upon judgment in personal suits have been pretty much discountenanced by the courts, as being generally vexatious and oppressive, by harrassing the defendant with the costs of two actions instead of one.” 3 Blackstone, Commentaries description begins William Blackstone, Commentaries on the Laws of England, Oxford, 1765–1769; 4 vols. description ends *158–159. The common-law action was also available to an executor, 1 Dane, Abridgment description begins Nathan Dane, A General Abridgment and Digest of American Law, Boston, 1824; 8 vols. description ends 161. Debt was the sole remedy here, because indebitatus assumpsit could not be brought on a judgment. James Barr Ames, Lectures on Legal History 160 (Cambridge, Mass., 1913); 8 Holdsworth, History of English Law description begins William Holdsworth, A History of English Law, Boston and London, 1922–1952; 13 vols. description ends 89. The 1773 Act may have been deemed necessary because the whole process of levy of execution in Massachusetts was statutory. See notes 69, 71, 72, above.

87. In the hands of JA and a clerk, possibly Jonathan Williams. Pleadings Book, p. [57]. The writ, dated 21 June 1773, was drawn by Sampson Salter Blowers, who represented Laughton in both the Inferior and Superior courts. The original writ in Blowers’ hand, with pleadings signed by JA, is in Suffolk Inferior Court Files, July 1773; No. 286. JA was of counsel for the defendants throughout the litigation. In July 1773 at the Suffolk Inferior Court, Laughton was awarded possession on a demurrer to JA’s plea that the defendants “do not know the said William Laughton.” At the Superior Court in Aug. Laughton prevailed again on the defendants’ confession of judgment for possession and costs. SCJ Rec. 1773–1774, fol. 108; Min. Bk. 98, SCJ Suffolk, Aug. 1773, N–15; SF 102278. This is an action of ejectment in the form commonly employed in the English courts. The declaration alleges a lease, collusive or fictitious, from the party claiming the premises to a straw or nonexistent person, in whose name the proceeding is actually brought. Compare note 2 above; see also No. 17, note 5. Although these proceedings might reflect an arms’ length transaction between the parties, that they do not here is indicated by a bill of costs in the file drawn by Blowers as attorney for “Laughton on the Case of Warden et ux. appellees vs. Pitts et al. appellants.” SF 102278. Further, on the Inferior Court writ, cited above, the name Warden has been crossed out and that of Laughton written in.

88. The premises were between Marlboro (now Washington) Street and Bishop’s Alley (now Hawley Street). SF 102278.

89. Not a reference to agricultural activity, but a literal translation of the original Latin form, meaning the leasehold itself. See 2 Chitty, Pleading description begins Joseph Chitty, Pleading and Parties to Actions, 2d edn., London, 1811; 2 vols. description ends 442 note.

90. Possibly in the hand of Jonathan Williams, JA’s clerk. Pleadings Book, p. [58–59]. The litigation dragged on for over 20 years. The original writ, bearing Josiah Quincy’s name, dates from 21 Sept. 1773. SF 91749. Documentation has not been found for the proceedings at the Oct. 1773 Suffolk Inferior Court (although there is a suggestion that Samuel Fitch represented Gillespie), but Boies apparently prevailed, because the Superior Court and Supreme Judicial Court Records and Minute Books carry the case as “Gillespie v. Boies.” Originally entered in Feb. 1774, Gillespie’s appeal was continued to Aug. 1777, when it was dismissed for an unspecified “irregularity of the proceedings in the lower Court.” SCJ Rec. 1775–1778, fol. 141; Min. Bk. 103, SCJ Suffolk, Aug. 1777, C–74. Boies recommenced his action, which came to trial for the first time in the spring 1779 Suffolk Inferior Court. Gillespie again appealed, and filed a prayer “that a Jury may go uppon the Spot, in order that real Justis may be done, & the Matter Finish’d this Term.” SF 1026791). After assorted continuances, the matter was apparently settled, for in SJC Rec. 1784, fol. 1, is the final notation: “Neither party appears.” See also Min. Bk. 2, SJC Suffolk, Feb. 1784, C–1. For another suit between the same parties, see Boies v. Gillespie, Suffolk Inferior Court Files, April 1774, No. 202.

91. Boston Gazette, 5 Nov. 1770, p. 3, col. 2: “The old Slitting Mills at Milton is now in good Repair: At which Place good NAIL RODS may be had at 30s. per Hundred.”

92. A consequence of the riparian system of water rights (note 74 above) is that the right to use of the water inheres in the very ownership of bankside realty. Unlike the prior appropriation system, where the right to water does not exist unless and until the water is actually used, the riparian system confers on the proprietor a perpetual right to the flow of water. A riparian landowner can lose his water right in only two ways: he can grant it to another proprietor; or he can suffer another proprietor to take the right away by prescription (open and long-continued usurpation). To say that a right to water may be lost by prescription is not the same thing as saying that this right may be acquired only by prescription. The first thought is entirely compatible with the riparian system; the second is wholly foreign to it, being in fact another way of expressing the doctrine of prior appropriation. In the debate which has simmered for the past half-century on the issue whether the common law was appropriative or riparian, a focus of inquiry has been the old pleadings, particularly the declarations. Compare Wiel, “Waters: American Law and French Authority,” 33 Harv. L. Rev. description begins Harvard Law Review. description ends 133 (1919), with Maass and Zobel, “Anglo-American Water Law: Who Appropriated the Riparian Doctrine?” 10 Public Policy 109 (1960). It was argued that because so many of the old declarations used language importing prescription, the water rights involved must have depended on prescription; in other words, prior appropriation was the key to those rights. The counter-argument was that no matter how the pleadings read, the facts of the cases and the language of the judges indicated that water rights followed riparian ownership.

In the absence of reported judicial opinions, it is difficult to determine the 18th-century Massachusetts rule. The point was raised in neither the declaration nor the plea in Clark v. McCarney, Form XXII. Language in the present declaration (“from time immemorial have been accustomed and ought to have the Benefit of a certain Water or Water-Course”) sounds in prescription; another “water” case in the Wetmore Notes, Symonds v. Traske (Essex Inferior Court? ca. 1771), likewise alleges “that a spring of Water ran thro’ [plaintiff’s land] for time immemorial ... and still ought to run.” Adams Papers, Microfilms, Reel No. 184. And all the relevant forms in Perham, American Precedents description begins Benoni Perham, American Precedents of Declarations, Boston, 1802. description ends 196, 199–200, use similar language. But the Wetmore Notes show that counsel in Symonds v. Traske, at least, knew of English forms noting that the ancientness of the watercourse need not be alleged. See, for example, 1 Mallory, Modern Entries description begins J. Mallory, Modern Entries in English; being a select collection of Pleadings in the Courts of King’s Bench, Common Pleas and Exchequer, and also all kinds of Writs, with readings and observations on the cases in the Reports, London, 1734–1735; 2 vols. description ends 482–483.

93. In JA’s hand. Pleadings Book, p. [61]. The records and files of this case have not been found. The action was one in trespass quare clausum fregit — “wherefore he broke the close.” (“Close” was a term of art referring to any interest in the soil, whether enclosed or not.) This was the remedy of one in actual possession of land for an injury to the land through or during a wrongful entry. For the remedies of one out of possession, see notes 13, 87, above. The judgment awarded money damages, but the action could be used to determine the right to possession. See 8 Holdsworth, History of English Law description begins William Holdsworth, A History of English Law, Boston and London, 1922–1952; 13 vols. description ends 467; 1 Chitty, Pleading description begins Joseph Chitty, Pleading and Parties to Actions, 2d edn., London, 1811; 2 vols. description ends . 173–183; Shipman, Common-law Pleading description begins Benjamin J. Shipman, Hand-book of Common-law Pleading, 3d edn., Ballantine, 1923. description ends 66–82; Perham, American Precedents description begins Benoni Perham, American Precedents of Declarations, Boston, 1802. description ends 333–339; 5 Dane, Abridgment description begins Nathan Dane, A General Abridgment and Digest of American Law, Boston, 1824; 8 vols. description ends 567; Act of 20 Nov. 1770, c. 9, §4, 5 A&R description begins The Acts and Resolves, Public and Private, of the Province of the Massachusetts Bay, ed. Ellis Ames, Abner C. Goodell, et al., Boston, 1869–1922; 21 vols. description ends 110. That determination of rights rather than recovery of damages was the object of this suit is suggested by the fact that the plaintiff could have obtained damages for injuries to his trees, soil, and grass, through a statutory action in which the defendant bore the burden. Act of 21 June 1726, c. 3, §§1–3, 2 A&R description begins The Acts and Resolves, Public and Private, of the Province of the Massachusetts Bay, ed. Ellis Ames, Abner C. Goodell, et al., Boston, 1869–1922; 21 vols. description ends 383–384; Act of 10 June 1698, c. 7, §4, 1 A&R description begins The Acts and Resolves, Public and Private, of the Province of the Massachusetts Bay, ed. Ellis Ames, Abner C. Goodell, et al., Boston, 1869–1922; 21 vols. description ends 324. See Perham, American Precedents description begins Benoni Perham, American Precedents of Declarations, Boston, 1802. description ends 334. Note that the declaration alleges that the trespass was from its beginning “to the Day of the Purchase of this Writ, at Sundry days and Times continuing.” Such an allegation, called a “continuando,” was proper when the trespass complained of was a continuing act, rather than a series of independent actions. Some authorities at least might have considered the cutting of trees to be in the latter class. See id. at 51–52, 338–339; Sutton, Personal Actions description begins Ralph Sutton, Personal Actions at Common Law, London, 1929. description ends 159.

94. Probably in the hand of Edward Hill, JA’s clerk. Pleadings Book, p. [62]. Documentation of this case is fragmentary. The original writ in the hand of Benjamin Kent is dated 6 Jan. 1773, returnable to the April 1773 Suffolk Inferior Court. SF 91649. JA’s Office Book, April 1773, MQA, shows that he was retained by Littlefield and carries the notations “Fini[shed]” and “to be abated,” which may mean either that the writ was abated, or that JA intended to plead in abatement. No other indication of the result has been found. For a related action in trover for an anchor between the same parties, in which JA was also of counsel for Little-field, see SF 91671; Office Book, April 1773, MQA.

The problem in the present case was that the transaction was an exchange rather than a sale of goods. By his contract the plaintiff was entitled to eleven gallons of rum, but none of the remedies available to him could provide this recovery. He could not rescind the contract and get back the rum which he had originally given to the defendant, because, in the absence of fraud, title passed to the defendant on delivery. A right to possession was necessary to maintain detinue or replevin, the usual actions for the recovery in specie of wrongfully detained goods. See 2 Blackstone, Commentaries description begins William Blackstone, Commentaries on the Laws of England, Oxford, 1765–1769; 4 vols. description ends *447–448; 2 Kent, Commentaries description begins James Kent, Commentaries on American Law, N.Y., 1826–1830; 4vols. description ends *496, *514; Shipman, Common-law Pleading description begins Benjamin J. Shipman, Hand-book of Common-law Pleading, 3d edn., Ballantine, 1923. description ends 117–118, 125–128. Detinue and replevin were similarly unavailable for the rum which the defendant had agreed to furnish, because they lay only for specific chattels, and no particular eleven gallons seem to have been intended here. In addition, replevin was not available where, as here, the plaintiff had consented to the original taking. Id. at 114–131; note 83 above.

Some legal historians say that debt or indebitatus assumpsit lay to recover unascertained chattels due by contract, but 19th-century authorities made clear that in such a case a showing of the value of the chattels would be required and that the recovery would be in money. Ames, Lectures on Legal History description begins James Barr Ames, Lectures on Legal History and Miscellaneous Legal Essays, Cambridge, Mass., 1913. description ends 89; Fifoot, History and Sources description begins C. H. S. Fifoot, History and Sources of the Common Law, London, 1949. description ends 24–28, 243; see 5 Dane, Abridgment description begins Nathan Dane, A General Abridgment and Digest of American Law, Boston, 1824; 8 vols. description ends 308; Mayor of Reading v. Clarke, 4 Barn. & Aid. description begins R. V. Barnewall and E. H. Alderson, Reports of Cases Argued and Determined in the Court of King’s Bench, Dublin, 1818–1822; 5 vols. description ends 268, 106 Eng. Rep. description begins The English Reports; 176 vols. A collection and translation into English of all the early English reporters. description ends 936 (K.B. 1821); 2 Chitty, Pleading description begins Joseph Chitty, Pleading and Parties to Actions, 2d edn., London, 1811; 2 vols. description ends 38 (Springfield, Mass., 13th Amer. edn., 1859). Even if recovery in specie might have been allowed under these forms, the action of debt for chattels had fallen into disuse by JA’s time. He and his contemporaries could well have concluded that Blackstone meant to exclude the recovery of goods when he said, “The legal acceptation of debt, is a sum of money due by certain and express agreement.” 3 Blackstone, Commentaries description begins William Blackstone, Commentaries on the Laws of England, Oxford, 1765–1769; 4 vols. description ends *153. Since it was commonly (although erroneously) considered that indebitatus assumpsit lay only where debt lay, it would have been logical for the 18th-century lawyers to assume that neither remedy existed in this case. See Fifoot, History and Sources description begins C. H. S. Fifoot, History and Sources of the Common Law, London, 1949. description ends 365. For cases following this logic, see Watson v. M’Nairy, 1 Bibb (Ky.) description begins George M. Bibb, Reports, Court of Appeals, Kentucky, 1808–1817, Frankfort, 1815–1817; 4 vols. description ends 356 (1809); Spratt v. M’Kinney, id. at 590, 595 (1809).

If the plaintiff could not obtain the rum in specie, he would have to be satisfied with money damages. Trover, the common remedy in damages for the wrongful appropriation or detention of a chattel, would not lie either for the rum originally given by the plaintiff or that owed him by the defendant, on the same reasoning that barred recovery in detinue or replevin. Shipman, Common-law Pleading description begins Benjamin J. Shipman, Hand-book of Common-law Pleading, 3d edn., Ballantine, 1923. description ends 101–107. The remedy in debt or indebitatus assumpsit on the contract might have sufficed, but there is good reason to think that it would have been held unavailable. Both indebitatus assumpsit on the common count for goods sold and delivered and quantum valebant (note 15 above) were based on a fictitious undertaking of the defendant to pay for goods either their price or their reasonable value, measured at the time of making the contract. Although there was some disagreement, a substantial body of later authority held that these actions were inappropriate where the defendant was to pay in chattels, because the plaintiff had bargained to receive the value of the goods at the time of his demand, which might be higher or lower than the value at the time of sale. According to this authority, the proper form of action was special assumpsit, in which the measure of damages was the loss occurring to the plaintiff through the breach — in this case the value of the rum at the time of the demand. See Mitchell v. Gile, 12 N.H. 390, 395–396 (1841); Harris v. Fowle (N.P. 1787), cited in Barbe v. Parker, 1 H. Bl. description begins Henry Blackstone, Reports, Court of Common Pleas and Exchequer Chamber, 1788–1796, London, 1791–1796; 2 vols. description ends 287, 126 Eng. Rep. description begins The English Reports; 176 vols. A collection and translation into English of all the early English reporters. description ends 168 (C.P. 1789); Shipman, Common-law Pleading description begins Benjamin J. Shipman, Hand-book of Common-law Pleading, 3d edn., Ballantine, 1923. description ends 156, 253; but see 2 Chitty, Pleading description begins Joseph Chitty, Pleading and Parties to Actions, 2d edn., London, 1811; 2 vols. description ends 273–275 note (Springfield, 1859); John Wentworth, A Complete System of Pleading, 2:121–122, 191–192, 200, 220 (London, 1797). In any event, if the defendant’s default had been occasioned by a rise in the price of rum, special assumpsit would be tactically preferable.

For whatever reason, special assumpsit was the form used here.