Volume 1 — Reports of Cases Argued and Adjudged in the Superior Court of Judicature of the Province of Massachusetts Bay (1761–1772)

THE Defendant Dougharty lost some Goods, which he suspected Poor had stolen; upon which Complaint was made to a Justice of the Peace, who heard their several Stories, and ordered Poor to Goal for further Examination. Poor was again examined, but Dougharty not appearing, was discharged, and differed to go without Day. The Justice kept no Record of any Part of the Transaction. The present Action was commenced by Poor vs. Dougharty for false Imprisonment.

For selling the Plaintiff unmerchantable Soap.(1) It was said there was no express Warranty at the Time of the Sale. But 2d Lord Raymond, 1120, was cited contra.

In this case, Ingraham, the Plaintiff indorsed the Writ. It was urged by the Council for the Defendant, before the Trial, that Ingraham was gone in the Army, had no Estate, and could not answer the Costs. It was said contra, that a new Indorser A never ordered but in the Case of absconding in-Colvent Debtors, and that the Plaintiff was in the Pay of the Government.

The Question was, whether Interest or Depretiation ought to be allowed by a Factor after any Period, otherwise than upon an Action of count, in which he shews at what Time he receive Pay for the Goods. (1)

The Plaintiff sues Bradley by the Name of Daniel Bradley, of Haverhill, &c., Trader. Upon which the Defendant pleads as follows And Daniel Bradley, junior, of Haverhill, &c Innholder, whose Body was attached by this Writ comes and says he is the same Person who was sued by the said John Zuill by the Name of Daniel Bradley, of Haverhill, &c., Trader.

Debt upon a Bond given here, which it was suggested was for a Debt due in England. Moved that English interest only should be paid. Cases in Eq. 288, cited.

Debt upon a Bond. Defendant pleads as follows : “ The said Timothy comes and de- fends, &c„, and prays Oyer of the Condition there- “ of, and the same is read to him in these Words: “ The Condition of the aforewritten Obligation, “ &c., (this Condition as usuall,) which being read “ and heard, the said Timothy faith that the said “ Christopher his Action aforefaid against him the “said Timothy ought not to have and maintain, “because he faith that the said Timothy, on the “…

THE late Governour Dudley, by his Will, devised as follows: “ I give my Wife One Hundred Pounds per “ Annum, to be paid quarterly during her Life by “ Paul Dudley my eldest Son, out of the Issues and “ Rents of my Estates herein given him. “ I give to my Son, William Dudley, my new “Farm in the Woods in Roxbury, containing 150 “ Acres with the Woodland there, purchased of “ Devotion Craft, from whence he shall annually “ supply and bring Home to his Mother her Fire- “ wood…

MRS. JACKSON was upwards of thirty Years a Tenant to Mrs. Foye, paid her Rent without any Deduction but for Repairs, which were often made. A. D. 1758 they settled Accounts, and Mrs. Jackson, owing Mrs. Foye, gave her a Note of Hand on Interest. The present Action was brought by Jackson against Foye for half the Rates for Twenty Years.

PLAINTIFF and Defendant had formerly submitted Matters in Controversy to certain Referees, who had reported thereon. This Action was brought by Wiswall vs. Hall to recover the Costs upon that former Suit, for though the Referees had reported that they should bear the Costs between them, yet Wiswall alledged that it was upon a Promise of Hall to bear the whole Costs. (2) To verify this he offered the Referees as Evidence.

<p>in this Argument said: Trespass and Debt are the two great Actions on which the Fullness of Evidence is required, and are Actions of the highest Nature.</p>

OLIVER sues the Defendant for selling him two free Mulattos for Slaves. (1) There was no Bill of Sale, but only several Receipts of Money for two Negro Boys sold & delivered. It was suggested on the other Side that the Defendant sold them not as Slaves, but only his Right, if he had any, in them. (2)—The Case was thus argued. I think from the Words of the Receipt it may be learnt what was his Intent.

<p>After Bond given to review, and before the Service of the Writ, the Deposition of Witnesses going to Sea may be taken under the Province Law of 7 W. 3, c. 11.</p>

The Province Law 2 Ann. c. 5, (1) directs the Manner of Suits against Executors and Administrators. Executor of his own Wrong takes the Duty and the Burden, he is by Wrong in the same Manner as if by Right, and is answerable no further than as Effects come to his Hands. The Common Law is the same with the Province Law. An Executor in his own Wrong cannot maintain an Action certain. He is not favoured as Executor by Right. 4 Wm. & Mary, c. 2. 1 Salk. 297. 2 Ventris, 179.

IT was moved that some of the Proprietors should be admitted Witnesses in this Case, who were not of the Committee who brought this Suit. 2 Lev. 231,* was cited, where Scroggs, Ch. Just., says, “that it ought not to be a general Rule “that Members of Corporations shall be admitted “or denied to be Witnesses in Actions for or against “their Corporations: But every Case Hands upon “its own particular Circumstances, viz., whether “the Interest be so considerable as by…

THIS Action was brought by the Tenant against the Landlord for the Recovery of half the Taxes, upon the Province Law called the Tax.Act. (1) This Case was said to differ from the Case of Jackson v. Foye, (2) try’d before this Court in August Term last, as in that Case Jackson had been Tenant to Foye so many Years, there had been many Settlements,—whereas here Derumple had been Tenant only five or six Years.

<p>An Officer who discharges a Defendant from Arrest in Consideration of the Promise of a third Person for his Appearance, can maintain no Action on such Promise; and such Person is therefore a competent Witness for the Officer in an Action for the insufficient Service.</p>

(From Essex.) (3) THE Question in this Case was, whether Samuel, Son of the original Devisor, took an Estate Tail, and if he did, whether the Plaintiff is sole Heir in Tail of Samuel, being eldest Son of eldest Son all along.

(From Middlesex.) THIS was an Action of the Case on a Note of Hand which was indorsed to the Plaintiff, and appeared to have been paid before the Indorsement. The Question was, whether the Plaintiff should recover in this Action or be barred by the Payment. (1) Strange, 674. It is always held when Payment is once made, a Promise is of no Force. Lucas, 287.

CHARLES PAXTON, Esq., applied to the Superiour Court for the Writ of Assistants, as by Act of Parliament to be granted to him. Upon this, the Court desired the Opinion of the Bar, whether they had a Right and ought to grant it. first read the Acts of 14 Car. 2, ch. 22, and 7 & 8 of Wm. & Mary, upon which the Request for this Writ is founded.

RUDDOCK was a Collector of Taxes in the Town of Boston, and brought his Action, which was Trespass upon the Case, for the Defendant’s Tax, upon a general Indebitatus Assumpsit. There were three Exceptions to the Writ, and Pleas in Abatement.

THIS is an Action of Trover brought to the Inferiour Court in Suffolk for a Quantity of Timber cut in the County of Cumberland. The Question was, whether the Title of Land can be given in Evidence in Trover in another County than where the Land lies. 1 Bacon, 35; l Salk. 290, Brown vs. Hedges; Mod.

(From Barnstable.) THIS Action was Debt upon an Arbitration Bond. No Award pleaded.

<p>A Town may recover of an Individual Money advanced by the Overseers of the Poor for the necessary support of his wife and Children.</p>

(From Cambridge.) PLAINTIFF was an Apprentice bound by his Guardian to the Defendant, who covenanted among other Things to pay the Plaintiff £80 (1) at the Expiration of the Time of his Service. This Action was Covenant broken. Oyer of the Indenture, upon which Defendant pleads that Plaintiff was not capable of serving him as he covenanted, and that in Consideration thereof the Guardian had released the Payment of the £80.

THE Question in this Case was, whether Estates in Tail are partable in this Province, by the Province Law. The Design of the Province Law (2) was to alter the Common Law Descent. All Estates Tail at Common Law were Fee Simple conditional. Co. Lit. 20 a. ’Tis the Statute of Westminster that forms Estates Tail. This Statute does not alter the Course of the Common Law Descents, it only limits them. Co. Lit. 19 a. Co. Lit. 110 b. This is the Case of Gavelkind Lands. Yin. Tit.

DUNN brought a Libel in the Admiralty against Scollay, for that he was a Mate on board a Vessell of Scollay’s, which was taken, and ransomed by the Mailer, and Dunn went as an Hostage. He was long Prisoner, and at last released by the Money raised by some of his Friends, and now returned to Bolton. Libels against Scollay and others, Owners of the Vessell.

Poor brought an Action against one Jutsham, and, it being suggested to the Admiralty that Jutsham was on board a Vessell in the Harbour, the Writ was committed to a Water Bailiff, who entered the Vessell and took him. Doble interposed, went up to Boston, and upon his Return forced the Defendant Jutsham from the Officer and carried him off; upon this the present Action was grounded. There were several Exceptions in Abatement of the Writ taken.

This was for the same Cause, and the Declaration was the same. First Exception was, that it was not alledged in the Declaration that they set forth to the Admiralty that Jutsham had absconded and concealed himself on board some Vessell from the Service of the Writ. Second Exception. They have not alledged that the Admiralty had Jurisdiction of the Matter of said Complaint. Given up. These Pleas are all negative; they find Fault with this, but do not point out a better.

GAY was indicted for assaulting and beating the Sheriff in the due Execution of his Office. The Case appeared to be this: Gay by Virtue of the Province Law relative to Highways, 5 W. & M. c. 8, & 11 G. 1, c. 3, (2) was warned to mend the Highways, and upon Complaint to a Juftice that he had neglected his Duty therein, the Justice made out a Warrant to bring Gay before him to answer for the Neglect.

TROVER* for a Negro. (1) The Administratrix of one Cockran, (Father-in-Law to the Defendant,) deceased, was offered as an Evidence to prove the Sale from Allison to the Father. Ruled by the Court, (after hearing the Arguments of Messrs.

THE Plaintiff (Hanlon’s Wife) (1) brings Trover against Thayer (a Sheriff) for attaching her Apparell.

INDICTMENT vs. Pourksdorff for Stealing. A Woman offered as Evidence who at the same Term had pleaded guilty to an Indictment of the same Nature. (1) objected to her, that the pleaded guilty to an infamous Crime, and therefore no Witness, and cited Hawkins’s Pleas of the Crown, B. 2, ch. 33, § 129; ch. 37, §§ 48 to 53. Law of Evid. 145. Judge Raymond, 32. 2 Sid. 51. (2) The Attorney General then moved for Judgment; and Granted.

THIS was a Writ of Review. McLean was called, of Milton, but it was fully proved that he did not belong to Milton.

IN this Action was a general Indebitatus Assumpsit on Account annexed. One Article was a Charge of Interest. The Council for the Plaintiff urged, that it was a Custom of Merchants here to charge Interest after a Year: (Several Merchants were sworn on this Head, but they did not agree about the Time, neither whether they did or did not first inform the Debtor. The Justness of the Charge was argued from Charge of Interest after a Year, at Home.

ASSUMPSIT on a Note. Note offered in Evidence to the Jury. The Word Order is omitted; we take it to be an essential Variance. There is not a greater Difference between a Bond and a Note, than between a Note negotiable, and not. Such kind of Variances are fatal. Vid. Fitzgib. 131, Baynham’s Cafe; Law of Evid. 191. The Note is, to pay Plaintiff Order: The or is left out. Where a Note is nonsensical we are not obliged to follow it.

Special Verdict. THOMAS BANISTER, Grandfather of the present Demandant, made his Will the 25 January, Anno 1708-9, and after divers Legacies follows: “ Item, after my just Debts and Funeral Charges are paid, I give all my Houses, Warehouses, Lands, Mortgages, Bills, Bonds, Money, Plate, Debts, Wares, Merchandizes, both at Sea and Land, as also all Books, Bedding, Household Stuff, Horses, Cattle, and all that of Right any Ways belongs and appertains to me, whether named or…

(From Plymouth.) Pleas in Abatement. THE Writ: Attach Nathan Hammond to answer the Proprietors of the common and undivided Land belonging to the Old Township of Rochester, in our County of Plymouth, in a Plea of Ejectment, wherein they demand against the said Nathan Hammond Possession of 120 Acres of Common Land that lieth in a Tract of Land containing 210 Acres in Rochester aforesaid: the whole Trad being bounded as follows, &c.; and say that on the 20th of December, 1739,…

<p> Life & Death. </p> <p>The Authorities on Behalf of the Prisoner were as follows: 2 H. P. C. p. 438, ch. 46, § 43, Tit. Evid. 1 & 2 Wm. & Mary, 2 H. P. C. 15 ch. p. 104, 105, § 61, p. 118. H. P. C. 428, Evid. § 5, 431. 1 Inst. 373. 1 Salk. 123. 1 Bac. 310, Bastardy. Kelyng, 32, an Authority much enlarged and insisted on.</p> <p>No Authorities produced on behalf of the King.</p> <p>Vid. Voltaire’s Com. on ye Essays on Crimes, &c. p. 1st.</p>

<p> (From Taunton.) </p> <p> Special Verdict. </p> <p>Every man is presumed, prima Facie, to be on the Train-Band-List. ’Tis for him to show himself exempted; the ipecial Verdict does not find any such Exemption. The Case is too plain to bear Argument.</p> <p>’Tis found in the Verdict that Bicknell had been on the Alarm-List. Now, will such general Warning at once bring him into the Train-Band-List? This, I take it, would be extending the Power of Officers beyond all Bounds. In such Case no Man is safe; for when a Man is on the Alarm-List, he is presumed exempted from Training. Now, after this, how unjuct is it, by such a general Warning, to clap him on the Train-List and make him liable to so heavy a Fine! It is putting it in the Power of every Officer to distress his Neighbours, who from long legal Exemption have thought themselves not liable to be transferred without special Notice; and never was it till now pretended such Transfer could be made by such general Warning. Your Honours will therefore be cautious how such an arbitrary and unjuct Precedent is made.</p> <p>’Tis by Martial Law that every Person is obliged by such Warning to attend, unless exempted. Some Exemptions are only temporary, and they have not shewn whether theirs is of this Kind or not. If they absent themselves without being legally exempted, they must bear the Consequences.</p>

ACTION upon an Insimul Computassent. It appeared that Wheelwright had made the Settlement, as joint Partner with Apthorp, and, on the Account so… Held: however it may have been in England, that one Note would discharge another. It is every Day’s constant Practice, to settle Accounts and give Notes in Discharge. And I appeal to you, Gentlemen of the Country, what Confusion would overwhelm us, if all Settlements should be thus wiped away, and made of no Value. What is Law?

<p>Case of Hostage & Ransom.</p>

NORWOOD brought his Action against Fair-service on an Indenture, for that Fairservice covenanted to pay £13., 6., 8. per Quarter for Rent of a Sand-Bank, and had not paid, &c. Defendant pleads, Non dimisit.

<p> (About an Highway.) </p>

INDEBITATUS ASSUMPSIT, for Boarding and Schooling Intestate’s Son. Proof that the Intestate promised to pay honourably. This Action will not lye; they ought to have brought a Quantum Meruit. Law of Evid. 190. It has always been the Custom of this Court, to allow an Indebitatus Assumpsit to lye, if the Services alledged were proved to have been done. As every Man is supposed to assume to pay the customary Price.

To his Excellency the Governour in Council. The Memorial of the Town of Bolton. Humbly shews, — THAT your Memorialists, having a just Sense of the Value of the British Constitution of Government, under which they have enjoyed all the Blessings of civil Life, cannot but be deeply affected, when the Channels through which these Blessings are derived to us are obstructed; which, at Present, is our unhappy Case.

INDEBITATUS Assumpsit upon a long Doctor’s Bill for Medicines, Travel into the Country and Attendance. that this Action lay not, but that a Quantum Meruit should have been brought; and he relyed much on the Cafe of Richards & Tyler, tried last August Term, q. v. p. 195.

We never yet have extended the Rule of the Plaintiff’s Oath to his Book so far as this Case would carry it. The Oath of the Party is allowed in any Case only from Necessity. You must bring Proof of the joint Contract and Sale to both the Defendants, and then your Oath and Book will be good Evidence of this Charge, We admit the Plaintiff to his Oath, when the Action is brought against one, because he may come in and defend himself.

I have a Deposition in my Hand, taken in perpetuam Rei Memoriam, which I offer to the Court as Evidence of Mr. Wheelwright’s Death. This is Evidence to satisfy the Court, and not a Jury. If your Honours are satisfyed of the Fact, whether by Attendance on his Funeral, or feeing his Corpse, or otherwise, you will order the Minute to be made by your Clerk.

PLEA in Abatement by Mr. Auchmuty, that the Defendant bore a Captain’s Commission, and so a Gentleman by Office, and therefore, Yeoman, was not his due Addition. Cited 2 Inst. 666, 668; 1 Inst. 66 a. Lovejoy is certainly no Gentleman by Office; for no Commission from any Governour whatever, can make a Man Gentleman by Office.

<p>The Acceptor of a negotiable Order is liable to a subsequent Indorsee, without Notice of the Indorsement.</p>

THE Demandant counts as Heir in Tail under a Will. objected to the Will going in as Evidence to the Jury, because the Will did not support the Declaration, as it gave only an Estate for Life to the Ancestor of the Demandant.

THE Plaintiff brought Assumpsit to pay on Demand, upon Account annexed, (1) and gave in Evidence his Book, in which was a Memorandum of an Agreement made at the Day of Sale, that Months Credit was given the Defendant. The Time alledged in the Declaration, of the Defendant’s being indebted, was, after a Lapse of the Months Credit.

was for admitting the Evidence to go in, in Mitigation of Damages. was against the Admission. of the same Opinion. was of Judge Trowbridge’s Opinion, for Admission. acknowledged the Point was of considerable Importance, and not without its Difficulties on either Side. Many Mischiefs and Inconveniences, he said, might arise, upon the Refusal or Admission of such Evidence.

INDEBITATUS ASSUMPSIT for Money had and received to the Plaintiff’s Use. The Cafe was,— Nightingale, for a good Consideration, sold a Tract of Land to the Plaintiff, by Deed; and after-wards, the Plaintiff’s Deed being burnt before recording, the said Nightingale conveyed the same Land to another Person.

Special Verdict. iNDEBITATUS ASSUMPSIT for Merchandise. The Cafe was: Goods were delivered in A. D. 17—. Afterwards an Abatement was made, the Account adjusted, and a Note given for the Balance; but this Action was brought upon the open Account. (1) It was urged for the Defendant that, where there had been an Adjustment, no Action would lie upon the open Account; but Insimul Computassent was the only Action.

<p>N. B. This was the first Court held in the New Court House in the County of Suffolk.</p>

EJECTMENT of two Pieces of Land in Cambridge. The Case was, that Hill, the Defendant, mortgaged the Premises to N. Wheelwright, Esq. Some Time after, Wheelwright failed and shut up; and, on the 10th of January A. D. 1765, conveyed all his Estate to Chas. W. Apthorp; (his wearing Apparell not excepted) and Apthorp, in the same Instrument, agrees to discharge certain Demands whereon Wheelwright might be arrested; or — should chuse to discharge.

t. The Plaintiff hath not set forth what Judgment was rendered by the said Justice on the said pretended Action of the said Pike against the Plaintiff. 2d. By the Plaintiff’s own shewing, he could have suffered no Damage, but what would be considered in a regular Course of Law, by the said Justice. 3rd. By the Plaintiff’s own shewing it doth not appear that the Plaintiff had suffered any Damage by the Defendant’s supposed Conduct. (1)

<p>A Prisoner may be removed from one Goal to another by parol Order. — Habeas Corpus ad Testificandum.</p>

TRESPASS. Richardson had recovered Judgment against Hall, in a former Action, whereon Execution issued, which Execution afterwards was directed to a Constable without the Knowledge of the Clerk or Request of Richardson. Richardson went with the Constable to take Hall, and, happening to meet him some Distance from the Constable, seized him. Hall then paid the Money and brought this Action. I have altered judicial Writs out of Court, but ’tis wrong.

ACTION for Words, and Special Damages alledged. Defendant justified speaking the first Words, and plead not guilty to the Rest. going on to open the Caufe — moved that he (Quincy) might open it. faid, if the Defendant infifts on trying the Ifliies feparately, they have a Right to open; but. if they will try them together, we muft open; for Part of our Declaration is denied; we ought, therefore, to proceed and prove what we have firft alledged.

TRESPASS. To the Force and Arms, not guilty. Justification for the Residue under a Warrant from Justice Jones, directed to an Officer, who took the Defendant for Aid, and, as such, arrested the Plaintiff. And, to support his Justification, Defendant produced an attested Copy from the said Justice’s Records.

<p>Payment by the Maker to the Promisee of a Note on Demand is a good Defence to subsequent indorsee for Value without Notice.</p>

<p>"The Levy of an Execution on Land is good Evidence of Possession in an Action of Trespass qu. cl., notwithstanding the Omission by the Officer to certify that the Appraisers were “ indifferent and discreet Men.”</p> <p>It seems that a Declaration describing the Close as abutting “ westerly on a Way ” is sufficiently supported by Proof of an ’ Abutment westerly on a Way and Land of J. S.</p>

<p>It seems, that under the Prov. Sts. 11 W. 3, c. 3, and 13 W. 3, c. 5, on Failure of the Appellant to appear and prosecute his Appeal in the Superiour Court, the Appellee cannot have Judgment for Damages without filing a Complaint.</p>

<p>No Action lies for Money recovered of the Plaintiff by Suit on a Note given by him to secure the Defendant against a contingent Liability on an Execution which the Plaintiff has subsequently paid.</p>

<p>Lands and Tenements mortgaged may be taken in Execution for satisfying the Mortgagee’s just Debts.</p> <p>A Deed was received in Boston by the Register of Deeds for Worcester, for Record. Five Days after, the Land was attached, and subsequently on the same</p> <p>Day the Deed was filed and recorded in the Registry at Worcester. Held that the Record was good against the Attachment.</p>

<p>While a Grantee of Land is in open Possession thereof under his Deed, Nothing passes by a subsequent Deed by the Grantor to a third Person, although recorded before the first.</p> <p>Land, of which the Grantee is in open Possession under an unrecorded Deed, is not liable to Attachment by the Creditors of the Grantor.</p>

<p>Under the Prov. St. 4 W. & M. c. 12, the Justices of the Sessions have no Power to raise Money from the County for an extraordinary Allowance to Jurors or Officers of Court for Services on a criminal Trial.</p>