Writ of Review—Stewart et al. v. King1
Cumberland Superior Court, Falmouth, June 1774
To the Sheriff of our county of Cumberland his under-Sheriff or Deputy, Greeting.
We command You that You summon Richard King of Scarborough in our County of Cumberland Esqr. (if he may be found in your precinct) to appear before our Justices of our Superior Court of Judicature Court of Assize and general Goal delivery to be holden at Falmouth within said county of Cumberland and for the countys of Cumberland and Lincoln on the tuesday next after the fourth Tuesday of June next, then and there in our said court to answer unto John Stewart Yeoman Jonathan Andrews Blacksmith, Amos Andrews Yeoman Timothy Stewart Yeoman, Samuel Stewart Yeoman, and Jonathan Andrews junr. Blacksmith all of said Scarborough In a plea of Review of a plea of Trespass commenced and prosecuted at an inferior court of common pleas held at said Falmouth on the last Tuesday of March seventeen hundred and seventy three by the said Richard against the said John Jonathan, Amos, Timothy, Samuel and Jonathan Andrews junr. and also against Jonathan Wingate Silas Burbank and Benjamin Carl in the words following, to wit, In a plea of Trespass for that the said John, Jonathan Andrews Amos Jonathan Wingate, Silas Timothy Samuel Jonathan Andrews junr. and Benjamin Carl at Scarborough aforesd. on the nineteenth day of March, AD 1766, in the nighttime with force and Arms broke and entered the said Richards house in said Scarborough wherein he and his family then dwelt and then and there with force as aforesaid broke and destroy’d seven of his glass windows of the value of seven pounds and cut and defaced the wainscott stair case within the said house of the value of six pounds bruised and ruin’d three dozen pewter plates and dishes of the plaintiffs of the value of four pounds ten shillings broke and destroy’d the plaintiffs stone earthen and brassware Kitchen chairs table and other household Utensils and furniture there found of the value of six pounds broke open and destroy’d the said Richard’s desk in his said house of the value of four pounds, broke and entered the said Richard’s shop near his said house, took and carried away from said house and shop and burnt and destroy’d divers deeds, notes of hand bonds and other papers of the said Richards a schedule whereof is to the writ annexed of the value of thirteen hundred ninety eight pounds three shillings and a penny half penny2 and put the said Richard and his family into great fear and distress and danger of their lives and for that3 the said John Jonathan Andrews Amos Jonathan Wingate Silas Timothy and Samuel Jonathan Andrews jnr. and Benjamin Carl afterwards on the second day of March, AD 1767, at said Scarborough with force and arms cut down ruin’d and destroy’d another house of the said Richard in said Scarborough of the value of fifty pounds and afterwards upon the fourteenth day of May, AD 1767, at 3d. Scarborough, the said John, Jonathan Andrews Amos Jonathan Wingate, Silas, Timothy, Samuel Jonathan Andrews junr. and Benjamin Carl with force as aforesd. burnt and destroy’d the said Richards barn there seventy two feet in length and thirty two feet in width of the value of eighty five pounds and his shed adjoining the same barn of the value of fifteen pounds one load of English hay being in said barn of the value of fifty shillings two bushells of his Flax seed of the value of twelve shillings his hay Cart of the value of twenty four shillings twelve rods of his barnyard fence there of the value of four pounds, and took and carried away two sleds of the value of twenty four shillings each six ox yoaks of the value of thirty six shillings six hay forks of the value of twenty shillings four scythes of the value of twenty four shillings four sickles of the value of six shillings and ten rakes of the value of twelve shillings all the property of the 3d. Richard and divers other of his utensils of husbandry there found of the value of forty shillings and also took carried away and kill’d two of his calves there found of the value of thirty six shillings, and other enormities and wrongs did there at the several times aforesaid to the 3d. Richard against our peace and to the damages of the said Richard as he says the sum of two thousand pounds, at which 3d. inferiour Court Judgment was rendred that the 3d. John Stewart Jonathan Andrews Amos Andrews Jonathan Wingate, Silas Burbank, Timothy Stewart Samuel Stewart, Jonathan Andrews junr. and Benjamin Carl recover against the said Richard King cost of Suit;4 from which Judgment the 3d. Richard appealed to the 3d. Superiour Court of Judicature &c. held at said Falmouth on the Tuesday next after the fourth Tuesday of June last, when and where the 3d. Richard moved the Court that he might be allow’d to strike the names of Silas Burbank Jonathan Wingate and Benjamin Carle, out of the original writ, and it was granted;5 and their names was struck out accordingly, and the 3d. Silas Jonathan and Benjamin in the same court acknowledged themselves satisfied as to their costs and Judgment of the same Court was rendred that the said Richard King recover against the said John Stewart, Jonathan Andrews Amos Andrews, Timothy Stewart Samuel Stewart and Jonathan Andrews junr. the sum of two hundred pounds lawfull money damage and costs taxed at twenty two pounds twelve shillings and a penny; which same Judgment the said plaintiffs in this writ of Review say is wrong and erroneous and that thereby they are damnified the Sum of two hundred and fifty pounds wherefore for reversing the same Judgment and recovering back from the said Richard King the 3d. Sum of two hundred pounds and the same cost and for recovering Judgment against him for cost of Courts they the plaintiffs in Review bring this Suit....6
And the said Richard King comes and defends &c.7 and Saith that the Said last mentioned Judgment is in nothing erroneous, Saving that it ought to have been for Two Thousand Pounds8 and thereof puts himself on the Country.
And the said Plaintiffs in Review likewise.9 James SullivanJohn Sullivan } their attorneys
1. SF 139642. In the hand of Nathaniel Hatch. Caption (“Province of the Massachusetts Bay.... George the third,” &c.) omitted.
2. The “schedule” lists fifty-four notes of hand, three bonds, eight deeds, five copies of executions and records of pending cases, one lease, and “many other papers which I cannot now ascertain but suffer for the want of in Defending myself against the Suits of many persons,” the whole totaling the amount alleged. The schedule also indicated, however, that of this sum £510 1s. 3 1/2d. in notes and bonds had been “paid or Secured to me by Several Debtors.” SF 139590.
3. In the margin of King’s writ of review appears a notation that King’s motion to strike the second and third counts of his declaration was granted with the defendants’ consent. SF 139645. Thus the incidents of 2 March and 14 May 1767 were not in controversy on the trial in review, probably because King’s proof was insufficient; on the first trial in the Superior Court in June 1773, the jury had found the defendants “not guilty” of the trespasses alleged in the second and third counts. Min. Bk. 99, SCJ Cumberland and Lincoln, June 1773, N–1.
4. Judgment in the Inferior Court was rendered on the verdict of a jury after pleas of the general issue by the several defendants. SF 139590.
5. As to this maneuver, designed to make these men competent as witnesses for King, see Doc. IV. The lists of witnesses in the files show that Wingate and Burbank gave depositions and testimony for King in June 1773. SF 139590. All three testified in June 1774. See Doc. XIII.
6. King’s writ of review was substantially identical with this one, except in the relief sought, which was the recovery of an additional £1800, the remainder of the original ad damnum of £2000. SF 139645. (The teste and return of service are omitted.)
8. This assertion, perhaps analogous to a counterclaim, might well have been objectionable under ordinary pleading rules. It is obvious, however, that these rules were not observed closely in the rather special situation of the writ of review, which had no English equivalent, and formally raised only the single broad issue whether anything in the prior phases of the action had been erroneous. Since as a practical matter both this action against King and King’s action seeking an increase of the judgment would be tried together, a pleading with such an exceptive clause avoided any inconsistency of position. A similar form was employed by the defendants in pleading to King’s writ. SF 139645.
9. Both plea and joinder are in JA’s hand, although the Sullivans signed the latter.