Adams’ Minutes of the Argument1
Essex Superior Court, Salem, November 1771
Salem. Novr. 1771. Lee vs. Bancroft.
Lowell. 24 or 25 days a Chance. Passages from 17 to 25.
Vessell in Time. A fair Chance. Did not mention how long she had been out, nor Howards arrival.
C[ol.] Lees Character so respectable, and Knowledge so perfect, that “a fair Chance” &c. from him would preclude all Enquiry.
1764 Jany. 28. Receipt for Money.2
Judge Hutch[inson] mentiond a Case in Wilson3 that the Court will not sustain an Action when the Policy is or has been under Refference. But the Clause in the Policy, that it shall be left to Arbitration, shall not preclude an Action.
Moses vs. Macfarlan. Burrows. Vol. 2d. 1009.4 Money paid upon a Risque deemed to be fair.
1. In JA’s hand. Adams Papers, Microfilms, Reel No. 185.
2. That is, Lee’s receipt to Bancroft for £20 paid out on the loss of the Merrill, in SF 132239.
3. Kill v. Hollister, 1 Wils. K.B. description begins G. Wilson, Reports, King’s Courts at Westminster, London, 1770–1775; 2 vols., 3 parts. description ends 129, 95 Eng. Rep. description begins The English Reports; 176 vols. A collection and translation into English of all the early English reporters. description ends 532 (1746). The case held that an action lay on the policy since there had been no reference and none was pending.
4. Moses v. Macferlan, 2 Burr. description begins James Burrow, Reports, King’s Bench, 1756–1772, London, 1766–1780; 5 vols. description ends 1005, 97 Eng. Rep. description begins The English Reports; 176 vols. A collection and translation into English of all the early English reporters. description ends 676 (K.B. 1760). In this famous case the defendant had recovered against the plaintiff in the Court of Conscience upon notes indorsed by the plaintiff under an agreement that the defendant would not hold him liable on them. The latter court refused to hear evidence of the agreement, and the plaintiff brought an action at law in assumpsit for money had and received to recover the sums thereby awarded. While Lord Mansfield’s decision that the action lies on the implied promise is the point for which the case is best known, the defendant had also argued that there could be no recovery of money awarded by the judgment of a court of competent jurisdiction. Mansfield held that the action was not inconsistent with the prior judgment because the Court of Conscience had properly concluded that the agreement was not before it. In the process he enlarged upon the theme that a new action could always be brought to attack a judgment on a ground that was not available as a defense against that judgment. The phrase noted by JA, which is from that portion of the opinion, appears in the following passage: “Suppose a Man recovers upon a Policy for a Ship presumed to be lost, which afterwards comes Home;—Or upon the Life of a Man presumed to be dead, who afterwards appears;—Or upon a Representation of a Risque deemed to be fair, which comes out afterwards to be grossly fraudulent.” 2 Burr. description begins James Burrow, Reports, King’s Bench, 1756–1772, London, 1766–1780; 5 vols. description ends 1009–1010. As to the case, see C. H. S. Fifoot, Lord Mansfield 141–157 (Oxford, 1936).