In these cases the defendants stood accused of violating province laws forbidding interference with the upstream spawning run of alewives. Under the statutes, an action was to be brought in the name of a private citizen on a qui tam basis; that is, upon conviction, the penalty sued for would be divided between the informer-plaintiff and the poor of the town where the offense had been committed. Clark’s case (Document II) was apparently straightforward, and Adams won “Verdict for Def’t Costs” as well as a 48s. fee.1
The Loring case was more complicated. From the files2 it appears that Loring and three others owned a sawmill at the mouth of Island Creek Pond, Duxbury, and that Wadsworth, Adams’ client, the town officer responsible for assuring compliance with the law, had commenced an action against them under the statute. Prior to the writ’s return day, however, Loring and the others gave Wadsworth a penal bond for £100 conditioned on the town’s agreeing to give up its share of the statutory fine. Perhaps behind this arrangement lay an offer of settlement: Wadsworth, who would ordinarily be entitled to half the statutory fine, may have agreed for some reason to accept less than this and to nonsuit himself;3 but, because Wadsworth could not legally control the town’s rights in the litigation, it would be necessary for the defendants to obtain the town’s relinquishment of those rights. The bond, therefore, merely protected Wadsworth’s interests.
The March 1765 Duxbury town meeting voted “No” to the proposition, but a special meeting on 13 May 1765 voted “Yes.” Meanwhile, the bond had fallen due. Wadsworth’s action on the bond commenced at the Plymouth Inferior Court, October 1765, and was continued4 to the Plymouth Inferior Court, April 1766,5 from which Adams’ minutes (Document I) date.6
The plea raised as defenses not only the May 1765 vote, but also Wadsworth’s acts between the execution of the bond and the March meeting. Wadsworth was alleged to have “set himself to invite and perswade the inhabitants . . . to vote against” the proposition and to have succeeded, “by means whereof said condition was rendered impossible to be performed by the plaintiff’s own doings.”7
This plea, something in the nature of a defense in confession and avoidance, threw the burden of going forward upon the defendants. It was therefore they, as Adams’ minutes show, whose evidence opened the trial;8 and it was they for whom the jury returned a verdict.9
1. JA, Docket, Barnstable Inf. Ct., Dec. 1767, Adams Papers.
2. SF 142238.
3. Paine’s minutes, however, suggest that the settlement may have involved an over-all payment by defendants of £30, to be split between Wadsworth and the Town. Paine Law Notes, Plymouth Inf. Ct., April 1766.
4. Paine Law Notes, Plymouth Inf. Ct., Oct. 1765.
5. Paine Law Notes, Plymouth Inf. Ct., April 1766.
6. JA’s minutes almost exactly parallel Paine’s; moreover, the cause was not tried in the Superior Court during JA’s connection with it. See notes 9 and 1, below. Min. Bk. 82, SCJ Plymouth, May 1766, May 1767, May 1768.
7. Plea. SF 142238.
8. “[I]f the only issue was raised by a plea in confession and avoidance the defendant would begin.” Sutton, Personal Actions description begins Ralph Sutton, Personal Actions at Common Law, London, 1929. description ends 123. It seems, however, that in England, at least, the question of the defendant’s right to open was not settled until the early part of the 19th century. See Cotton v. James, M. & M. 273, 278, 173 Eng. Rep. description begins The English Reports; 176 vols. A collection and translation into English of all the early English reporters. description ends 1157, 1159 (N.P. 1829).
9. SF 142238. On appeal to the Superior Court new pleadings were allowed and the judgment was reversed. Min. Bk. 82, SCJ Plymouth, May 1766, N–8; id., May 1768, C–5. SCJ Rec. 1767–1768, fol. 186. JA dropped out before final judgment, but his dockets show that he received fees totaling 6s. for the Inferior Court, and £6 7s. 4d. in the Superior Court. JA, Docket, Plymouth Inf. Ct., April 1766; SCJ, May 1766; SCJ, May 1767.