Title: Editorial Note
From:
To:

       Although there was no court of equity in provincial Massachusetts, the law courts were able to develop the real estate mortgage into an effective and flexible instrument of finance. In the usual transaction the mortgagor gave the mortgagee an obligation in the form of a bond or note for the amount borrowed; this obligation was secured by the mortgage itself, a deed to the mortgaged premises in fee simple, conditioned on the repayment of the sum covered by the obligation. Both the liability of the land and the general personal liability of the mortgagor were thus established. In the event of default the mortgagee could bring an action on either obligation or mortgage, but he could proceed only at law. If common law forms had been followed literally in these suits, injustice might have resulted. In some cases at least, the plaintiff could have recovered both land and money, and, in an action on a sealed obligation such as a bond, payment other than according to the precise terms of the instrument would not have been a bar. Further, the common law did not recognize the mortgagor’s right, protected by the court of equity in England, to redeem the lands by tender of the debt and costs after the time for payment had run.
       Such defects might have discouraged potential borrowers from offering their lands as security, had it not been for a Massachusetts Act of 1698 which gave the common-law courts the equity powers necessary to overcome them. Under the statute in actions brought on sealed instruments and on mortgages when judgment or verdict was for the plaintiff, the court was empowered “to moderate the rigour of the law and on consideration of such cases, according to equity and good conscience to chancer the forfeiture, and enter up judgment for the just debt and damages.” In real actions on mortgages the judgment was “to be conditional,—that the mortgager or vender, or his heirs, executors or administrators do pay unto the plaintiff such sum as the court shall determin to be justly due thereupon, within two months time after judgment entred up for discharging of such mortgage or sale, or that the plaintiff recover possession of the estate sued for, and execution to be awarded for the same.” By the same Act, “where any mortgagee or vendee of any houses or lands granted on condition hath recovered, or entred into and taken possession of the same for the condition broken,” the mortgagor within three years after entry could tender the unpaid balance and costs and disbursements in court and have possession restored by quitclaim deed from the mortgagee or a purchaser, or by judgment.
       Thus, under the statute if the mortgagee sued upon his bond, he could recover the actual debt, but not the penalty of double the face value usually attached to such instruments; moreover, the debtor presumably was credited with any partial satisfaction which he had made. If the mortgagee wished to proceed against the land, he might either enter peaceably, or sue for it in ejectment, asserting his title under the mortgage deed. In the latter event he could enter under a judgment in his favor if the mortgagor did not pay the debt within two months. In either case the mortgagee’s title became absolute if the mortgagor did not redeem within three years after entry. This was the process of strict foreclosure, still substantially in effect in Massachusetts. It resembled the procedure at equity in England, with the significant difference that there the court had unlimited discretion to open up the foreclosure for redemption if justice required.
       There was the further difference that in England, if the mortgagee recovered the land through foreclosure, a subsequent action against the mortgagor on his personal obligation opened up the right to redeem, although the land might be worth less than the debt. The cases are not clear, but there even seems to have been some 18th-century authority for the proposition that foreclosure barred an action on the bond altogether, unless the premises had been sold by the mortgagee. In England and in many of the United States, these problems were ultimately met by the device of foreclosure by sale, the usual modern practice, in which on a bill to foreclose the court will order a sale of the property and adjudge any deficiency against the mortgagor, but will allow him to take a surplus.Prout v. Minot shows that, although provincial Massachusetts had not developed foreclosure by sale, the courts were able to accommodate the conflict between recovery on the land and recovery on the debt through flexible use of the statutory procedures just discussed.
       The case arose out of a complicated series of transactions. Timothy Prout borrowed £100 from Christopher Minot in December 1753, giving a mortgage of his real estate on Milk Street in Boston and a bond in the penal sum of £200 to secure the loan. In October 1755 Prout gave a second bond and mortgage on the same property to one William Brown for a loan of £184. Two years later Brown foreclosed in an action on the second mortgage and was awarded possession in December 1757. In December 1758 Minot assigned to Brown his rights in Prout’s first bond and mortgage for a consideration of £112, the sum of the principal and unpaid interest. Brown, having rid himself of this encumbrance, was apparently content with his bargain until the house on the mortgaged premises was destroyed in the great fire of March 1760, which significantly reduced the value of his investment.

       At the July 1761 Suffolk Inferior Court an action of debt on the first bond was commenced against Prout in Minot’s name, a procedure made necessary by the common-law rule against assignments of “choses in action,” that is, rights legally accrued but not reduced to possession. That Brown, rather than Minot, was the real party in interest seems certain from the fact that the instrument by which the bond was assigned gave the former power to sue upon it and keep the proceeds. At the April 1762 term, after argument on the pleadings, the court held Prout’s plea in confession and avoidance bad and awarded Minot “chancery” of £136 6s., the actual amount of the debt plus interest.
       Prout appealed to the Superior Court, where at the August 1762 term argument was again had on the lower court pleadings. Prout’s plea, which had been filed by Oxenbridge Thacher, averred Minot’s assignment of bond and mortgage to Brown, and alleged that on the day of the assignment Brown had elected to enter upon the premises for nonpayment of the sum secured, rather than to sue upon the bond. Minot’s replication, by Richard Dana, denied that the entry was for nonpayment as alleged. Thacher demurred, asserting that the replication contained a negative pregnant (a denial of a particular allegation which implicitly admits the rest). Dana, joined by Jeremy Gridley, countered by attacking the plea, a permissible tactic at common law, because a demurrer at any stage made all of the pleadings fair game for either side. The ground of the attack was that Brown’s election was not a bar to the action, since an entry under the mortgage did not discharge the bond. The court in a unanimous opinion upheld this contention and found the plea bad. Prout, however, was not content with the usual procedure by which the court chancered the bond to the debt appearing in the record. He asked for and was granted leave to be heard further “in chancery” at the next term.
       Accordingly, he filed a “Bill in Chancery” (Document I), at the February 1763 session of the court, setting forth the facts and praying relief from what he urged was an inequitable double recovery in Brown’s behalf. The matter was continued term by term until it finally came on in August 1766. Samuel Fitch now argued for Prout against Dana and Gridley. Adams was not of counsel, but made brief minutes of the argument and opinion, which are printed as Document II.
       Fitch produced authorities to show that assignments of choses in action are invalid at law but convey a right which the assignee alone can enforce in equity. His point seems to have been that since this was in effect an equitable proceeding, the court should treat Brown as the real party in interest, even though the action was in Minot’s name. This position could have been the basis for an argument that Brown should not recover because he did not have a claim to the bond which a court of equity would recognize. His acquisition of the mortgagee’s title by assignment after he had acquired the mortgagor’s equity through foreclosure could be said to have effected a merger which extinguished the debt. Adams’ notes do not show whether Fitch pressed such a contention, but he must at least have argued that if Brown had an equitable claim, his entry on the land had satisfied it, and there could be no recovery in his behalf against the bond. Implicit in these positions was the basic equitable argument, expressly made in Prout’s bill (Document I), that, even if merger and entry were not absolute bars, the action should not lie because at the time of entry the land had been worth more than both bonds together.
       According to Adams, Gridley “Seem’d to conceed” that the action was really in Brown’s behalf, probably because there were ample grounds on which to argue that he was not barred. The court apparently found these grounds adequate, since, despite the concession, it entered judgment against Prout for £176 10s., the principal of the bond, with 6 percent interest from the date of the last payment in 1756.
       Although it is not clear that the merger argument was raised, the result in this case is consistent with later authority on the question. In 1849 Chief Justice Shaw of Massachusetts, in an opinion synthesizing earlier English and American decisions, announced the proposition that a merger of the equity and the mortgage takes place when the purchaser of the mortgage is under a duty to clear the equity from the encumbrance, or, in the absence of such a duty, the purchaser has no proper interest in keeping mortgage and equity separate. Under this theory one who purchases the equity of redemption at its actual value and then takes an assignment of the mortgage cannot maintain an action on the obligation against the mortgagor, because the gist of the purchaser’s bargain is that, having bought the equity for less than the full value of the land, he will pay the rest of the price by indemnifying the mortgagor against the debt. This he does either by paying to the mortgagee the amount due, or by allowing the land to be taken in satisfaction. He is doing no more than fulfilling his bargain when he pays the mortgagee for an assignment. It would be inequitable if he could also recover the amount so paid against the mortgagor personally, because he would end up with clear title, but would be out of pocket only what he had bargained to pay for an encumbered title.
       Brown, however, did not purchase the equity outright, but obtained it only in an effort to satisfy the mortgagor’s debt to him. The bargain out of which that debt arose was that Brown should get back the money which he had loaned, not that he should become obligated to pay out further sums. Thus, when Brown bought the first mortgage, he was not performing a contractual duty to the mortgagor, but was acting to protect his own investment from the effects of the mortgagor’s default. Since he had not bargained to pay the debt, it would have been inequitable if he could not have recovered what he had paid out both on his own loan to Prout and for the assignment from Minot. If the value of the land had been sufficient to provide this recovery, there still would have been a merger, because Brown would have had no valid interest in preserving the obligation. If there was a deficiency, however, the obligation would survive as a basis for action against the mortgagor.
       Adams’ notes show that the court did deal with the question of recovery against the bond after recovery of the land. Justice Benjamin Lynde apparently recalled the court’s earlier ruling on demurrer that an entry under the mortgage did not bar an action on the bond. The result here carried the principle further, asserting the mortgagee’s right not only to pursue both remedies, but to take satisfaction out of both sources up to the amount of the debt. The complexities of English practice were rejected in favor of a simple rule, focused on the debt rather than the security, which was characteristic of later American mortgage law.

       The questions whether Prout’s personal obligation survived in Brown’s hands and, if it did, whether Brown could pursue it despite his entry under the mortgage, both turned on the value of the land. If this figure exceeded the amount of the debt, Prout’s complaint was justified and Brown should have been barred. If there was a deficiency, however, it was equitable for Prout to be responsible for all of his indebtedness. The total of principal and interest on the two debts was at least £481. Prout alleged in his bill (Document I) that in 1758, when Brown entered, the premises were worth more than the debt, but the only figures which he set forth were 1760 values of £200 for the house and “at least” £133 6s. 8d. for the land. Accepting these figures and adding in Prout’s figures of £50 for rent at £20 a year from Brown’s first entry in December 1757 until the fire in March 1760, there would still have been a deficiency of nearly £100. Thus, even by Prout’s calculations, Brown was entitled to recover against the bond, and the only question open was the amount. The court’s actual award of £176, the maximum possible on the bond, was probably based on the value of the land after the fire, when the deficiency would have been nearly £300. This valuation seems harsh from Prout’s standpoint, but it could have been justified by the fact that Brown’s title was subject to Prout’s right to redeem until December 1761. It might have been argued that in the determination of a deficiency the mortgagee’s interest cannot fairly be valued until foreclosure is complete and his title is absolute in equity as well as at law.


Title: Editorial Note
From:
To:

       This case and Nos. 18–19 and 20–21 reflect some of the legal problems arising from the dependence of the New England economy on running water as a source of industrial power. They fall into two categories: defendant either blocked a running stream entirely or so diverted the flow as to diminish the amount available to plaintiff; or defendant caused the stream to overflow plaintiff’s land. Plaintiffs in both sorts of cases had first to prove a right to the water, the land, or, sometimes, both. Some of the Adams minutes are thus largely concerned with chain-of-title evidence. And, as in most provincial litigation, technical points of pleading were usually never far from the surface.
       Like Wilkins v. Fuller, No. 20, the instant litigation arose from the flooding of plaintiff’s meadow by back water from defendant’s dam, this one being across Pudding Brook in Pembroke. Here, however, there was no pleading issue to delay the proceedings. The action was entered at the Plymouth Inferior Court in March 1768, and was continued to July 1768 where, after a jury view of the land in question, Adams won a “Verdict for Defts.” with costs, and a fee of 28s. We have no Adams minutes of the Inferior Court trial, but Robert Treat Paine’s notes include the former’s argument (Document I). Adams’ own minutes (Document II) date from the Plymouth Superior Court, May 1769, where once again his clients won.


Title: Paine’s Minutes of the Trial: Plymouth Inferior Court, July 1768
From: Paine, Robert Treat
To:

       Mr. Adams. The grass was good till it was pastured and the bushes grew up; if the mill had not been built, his neglect would have filld up the natural Course and spoil’d the Meadow.
       Why did not he bring his action in the time of it?
       He has no damages for what he bought 5 years ago.
       The fall of water. I knew a meadow.  Duke of Bridgwater’s Cannel.


Title: Editorial Note
From:
To:

       In England the probate of wills of personalty was within the jurisdiction of the ecclesiastical courts, although many related questions, both of administration and distribution, had to be tried at law or in equity. The ecclesiastical courts had no power over wills of realty, because the common law claimed exclusive jurisdiction of title questions. Such wills were proved only if an action at law was brought to test the devisee’s right.
       One result of this division of jurisdiction was that the validity of a will might be brought again into question in an action at law despite presumably conclusive probate proceedings. In Massachusetts the confusion was relieved somewhat by Province statutes which gave to the judges of probate many powers in the administration and distribution of both real and personal estates. Title was still a question for the common law, however, and in Clap v. Randall, the validity of Samuel Clap’s will, previously allowed by the Governor and Council sitting as Supreme Court of Probate (No. 15), was reopened and argued anew, apparently without objection. The action may have been permitted either because lack of notice to the plaintiff, or his guardian, was held to relieve him from the bar of the prior probate decree, or because the English practice of not giving conclusive effect to such a decree was followed.

       The action was a plea of partition brought by the guardian of Michael Clap, minor son of Samuel’s deceased eldest son, against the testator’s three surviving children, Sarah Randall, William, and Samuel Jr. Under the will, Michael had received only a £60 legacy, apparently because the testator had made inter vivos gifts to his father. The lands in suit had gone to Samuel Jr. and Samuel Randall, Sarah’s son. William Clap, who had contested the will in probate, had been virtually disinherited. Michael’s declaration ignored the will completely, setting forth that Samuel had died intestate while seized of the lands and that Michael and the defendants, Samuel’s only heirs, were thus tenants in common in the premises. Although in form the writ sought money damages for failure to partition, the suit was brought under a Province statute permitting a cotenant to compel division of lands in an action at law.

       The case came on for trial at Plymouth Inferior Court in April 1769, where Adams entered a plea of not guilty for the defendants. Daniel Leonard’s demurrer was overruled and judgment entered on the plea. On appeal to the Superior Court at Plymouth in May 1769 the lower court pleadings were waived and Adams averred that the defendants “and the Plantiff do not hold the said Premises together in common and undivided, as the Plantiffs have above declared.” The case went to the jury. Adams’ minutes of the evidence and arguments, printed below, indicate that the validity of the will was the principal question argued. Witnesses for the plaintiff testified both as to Samuel Clap’s mental state and to the informal character of the document itself. The authorities cited by Leonard are on these points, and James Otis, also arguing for the plaintiff, directly raised the Statute of Frauds. That Act required only that a will be written, signed, and witnessed, but Otis apparently argued that its policy of preventing frauds through proof of the testator’s actions should be extended to bar a will with blank pages, which would give great opportunities for later changes.
       Adams, as he had in Clap’s Will, brought forward authority dating from before the Statute of Frauds, to the effect that wills with defects other than those covered by the Act were good at common law. His principal source seems to have been Nelson’s Lex Testamentaria, a treatise of doubtful value in which two of the three cases which Adams cited are misstated in his favor, revealing the pitfall, not unknown today, that awaits one who relies upon secondary sources. No objection seems to have been made to Adams’ authority, however, either because no one in the Province had the original reports from which Nelson’s work could be refuted, or because Adams’ position was accepted as good law despite dubious precedent. The jury returned a verdict for the defendants, and Samuel Clap’s estate was finally at rest.


Title: Adams’ Minutes of the Trial: Plymouth Superior Court, May 1769
From: Adams, John
To:

       Lex Test., Page 576. Stephens vs. Gerard, 1. Sid. 315. Page 571, Sackville vs. Brown. Page 576, Chadron v. Harris, Noy 12.
       Randal et als. vs. Clap.
       Leonard.
       Witnesses.
       Zechh. Daman. In the latter Part of his Life, he seemed not so capable, intosticated and Passionate. Good Ideas.
       Bezaliel Curtis. A good deal of Judgment once. He seemed to be in a hurry, a fury, &c. I did not look upon him the Man he used to be. One time he seemed cool, and calm. At other Times he said that Bill would not catch his Horse and Sam. had promised to do it. Will the Eldest. He said Will had wronged him, and had Creatures and not returned’em.
       Josa. Jacobs. Fortnight before he died, Saml. gave me the Will to keep. The old Man told me, he had sent it by Saml. December Court delivered to me. He left Blanks that Coll. Clap might view it and alter it. He said so. I did not see but what his Mind was as usual. He never .
       Hawk. Cushing. Unreasonably prejudiced vs. his son Wm. Whenever Wills Name was mentiond he was in a Passion. He would talk about common Affairs, he would talk well eno. I swore to Man it shall be £4000 out of his Pockett.
       Abigail Sylvester. I should venture to trade with him as well as ever. In a Passion, always hasty.
       He left Blanks to alter when he had occasion for it, he said.
       Leonard.
       Swing. 522. 82. Become a Child. Proof of it.

       Will itself.
       Otis. Statute of Frauds, requires the Subscription of 3 Witnesses. Many Frauds were found to be committed, concerning Wills. The design that the Witnesses may be able to swear to the Identity of the Writing.
       This Method lyable to Fraud and Interpolation.


Title: Adams’ Minutes of the Argument: Suffolk Superior Court, Boston, August 1772
From: Adams, John
To:

       Hill vs. Whiting
       In this Case the Plaintiff has alledged that her Father died seized on the Thirtyeth of the Month. But the Jury have found that he died seised on the Twenty first of the Month.
       1. Inst. 293. a. “Also where a Man will sue a Writ of Right, it behoveth that he counteth of the Seisin of himself or of his ancestors, and also that the Seisin was in the same Kings Time, as he pleadeth in his Plea. For this is an ancient Law used, as appeareth by the Report of a Plea in the Eire of Nottingham.”

       Fitz. N.N.B. page. 69. Writ de Droit. “In this Writ he ought to count of his own Possession, or of the Possession of his Ancestor; otherwise the Writ doth not lie, and he ought to alledge Esplees” &c.
       From these Authorities it seems, that the Demandant must count of a Seisin at some certain Time as upon a certain Day, or within some certain Time as within such a Kings Reign, or within some other certain Time, and must prove accordingly.
       32. H. 8. and 21 Jac. 1. Limitation of Real Actions. Bac. Abr. Vol. 3. 501.
       Holbeck vs. Bennett, 2. Lev. 11. 2. Saund. 317.
       Blackwell vs. Eales, 5. Mod. 286.
       Rex vs. Bishop of Chester, Skin. 660.
       Lane vs. Alexander, Cr. Ja. 202.
       Cro. Car. 360.
       2. Comyns’s Rep. 12. 13.

       3. Lev. 193. Where Day is made Parcell of the Issue it is ill. Brooke Trav. pl. 40.
       2. Mod. 145. Brown vs. Johnson. Time is not traverseable. Plaintiff must alledge a Time for Forms sake but Defendant ought not to make Time Parcell of the Issue.
       Court unanimous that the Day is not material, and therefore the Plaintiff recover.


Title: Opinion of Judge Trowbridge: Suffolk Superior Court, Boston, August 1772
From: Trowbridge, Edmund
To:

       In the Case of Hill Agt. Whiteing in Ejectment,
       Whether Hills Father died on the 21st or 30th day of October 1732, He i.e. she is alike intitled to recover the 21 acres and 31 Rods of Land, and to recover the same by an Action of Ejectment; therefore on which of those Days he died seised, is an Immaterial Circumstance and not Traversable. Holbeck vs. Bennet, 2 Lev. 11, 2 Saunders 317. Blackwell vs. Eales, 5 Mod. 286. Rex vs. Bishop of Chester, Skin. 660. Lane v. Allexander, Cr. Ja. 202. And the Plaintiff may recover so much as he is Intitled unto, tho it be less Than he demands in Ejectment. 1 Burrows 329. I think the Plaintiff Ought to have Judgment for the 21 Acres and 31 Rods, and Costs.
        Edm: Trowbridge


Title: Adams’ Abstract of Title: Middlesex Superior Court, Cambridge, October 1772
From: Adams, John
To:

       Prescott vs. Priest.
       1756. Novr. Deed from Jonas Prescott to Jonas Jnr. of Gift. ¼th.
       1749. Aug. 17th. from Jonas to Ebenr. ½ of all my Homestead. Free Liberty to pass and repass by Gates and Barns.
       1719. Octr. 8th. from Jonas to Jonas Jnr. All my Right in an old Dwelling House, &c. excepting
       1727, 8 Jany. 28. Jonas to Jonas. ½.

       David Goodhue. Jonas Esq. in Possession of Part, and Prescott that is dead of another Part.


Title: Adams’ Minutes of the Trial: Middlesex Superior Court, Charlestown, April 1773
From: Adams, John
To:

       Prescot vs. Priest.
       8 Mod. page 115, 16. Hardwick’s Cases.
       Gilbert’s Hist. of Common Pleas.

        Dana.

       Gershorn Fletcher. 55 Years, Prescott the Grandfather of Plaintiffs, have possessed it, and Plaintiffs since and knew they possessed the Grist mill and fulling Mill,Keep in Possession of the Forge where the Saw mill was.
       David Goodhue. Priest 30 Jany. 1771. took lever out of Prescotts Gate, and tossed it into the Stream. The Gate shut down. Knows Possession 8 years. Dam broke but cant say, who broke it. Heard Priest say the dam would not stand long, a Week before it was tore up.
       Jona. Pierce. Priest told me that the upper Dam would not stand, that it would be tore down—the night before it was done. Plaintiffs have been in Possession. Upper dam built in 1771. Upon Prescotts Land—about 30 or 40 Rods above the other. A benefit to all alike when let out.
       Moses Goodhue. Forgot what Priest said, but think he said it would not stand long. The Forge had the longest Use of the Stream, when not Water eno. for all the Mills.

       Nat. Prentice. A Lever, Joel kicked off into the Stream. Joel came into Mill without leave, and shut down the Gate.


Title: Cushing’s Report of the Trial: Middlesex Superior Court, Charlestown, April 1773
From: Cushing, William
To:

       Middlesex—Charlestown. April Term 1773.Prescott et al plaintiffs vs. Priest.
       Trespass quare clausum fregit—Defendant pleads in abatement that one of the plaintiffs died since the last continuance. Demurer and joinder.
       Mr. Adams in support of the plea cited Gilb. prac. Com. pleas. 242. 248—Hardwicke’s cases 395.
       Dana for plaintiff—cites 8 Mod. 115. 116.—Bac. abr. Abatement. F. p. 7.
       Per Curiam Oliver, C.J., Hutchinson, Ropes and Cushing, J. The action survives; and by 8 & 9 W. 3., Cap. 11. “where the action survives, and one of the plaintiffs dies—it shall go on and not abate.” Respondeas ouster awarded unâ voce.


Title: Editorial Note
From:
To:

       Jonathan Wilkins owned a pasture and apple orchard on Mill Brook in Middleton, near the Great Pond. On 10 March 1762, Timothy Fuller erected a dam which on 28 March 1762 and thereafter at intervals until February 1770 caused the stream to overflow part of Wilkins’ land, allegedly damaging his trees and spoiling his grass. For unexplained reasons, Wilkins waited until 1771 before bringing an action of trespass on the case for the damage. Apparently he was then suing for damage to land which he no longer owned. The writ alleged that Wilkins “on the twenty-eighth Day of February A.D. 1770 was and for nine years then last past had been seized in his Demesne as of Fee” of the land in question. In the Wetmore Notes under the heading “Issues November Term Salem 1771” appears the entry “Wilkins v. Fuller—case for flowing before sale,” that is, before Wilkins sold the property. That this was the situation is confirmed by the statement of Samuel Porter, counsel for Fuller, that “Trespass could not be maintained because the Plaintiff not now owner of the land” (Document II).
       It is not clear that Adams was ever of counsel. He does not appear in the earliest phase of the case, Ipswich Inferior Court, March 1771, where the jury found for Wilkins £6 damages and costs. Accurate dating of Adams’ minutes (Document II) has been difficult. In the manuscript, it appears on the reverse of a copy of the writ in Hoyt v. Brown, a case which was entered at the March 1771 Ipswich Inferior Court, and continued term by term to the July 1772 Salem Inferior Court, when the matter was determined on a sham demurrer. It is therefore possible that Document II dates from the March 1771 Ipswich Inferior Court. The documentary evidence, however, suggests a later date, either in the June 1771 Ipswich Superior Court, to which both parties appealed, or before referees later. At the June 1771 sitting, the court continued the matter to the Salem Superior Court, November 1771, at which time the case was sent to referees. Mention of the jury view in June 1771 (Document I) suggests that the case may have been partially tried at the Superior Court, although the Minute Book does not so indicate; and indeed current English practice permitted the taking of a view before the trial jury was even impanelled.
       But the most probable attribution of Document II is the referees’ hearing, the likeliest forum for the sort of testimony there included. One of the original referees having died, a substitute was appointed at the June 1772 Ipswich Superior Court; the report itself is dated 2 July 1772.
       The Minute Book contains no mention of counsel, but Document II suggests that Nathaniel Sergeant and Porter appeared for Fuller, with John Lowell for Wilkins. Adams, too, may have appeared for Wilkins. In November 1772, the court read and accepted the referees’ report that “there is nothing due from either Party to the other.”
       Elias Smith had also commenced an action against Fuller alleging straight trespass rather than case, and claiming that Fuller had built a dam on Smith’s land in March 1766, “flowing” two and a half of Smith’s acres. There are no minutes in Adams’ hand, except the solitary title “Smith v. Fuller” in the booklet containing cases from the Ipswich Superior Court, June 1771. The Wetmore Notes, however, contain what appear to be minutes of certain legal points which arose at the trial in the latter term (Document III). Apparently, plaintiff tried to introduce evidence of the actual building of the dam in 1762; defendant objected on two grounds, first, that the dam was not built during the “continuando,” or period of continuing flowage alleged in the writ, and, second, that the applicable statute of limitations barred such evidence. From Wetmore’s minutes it appears that the court sustained both objections.
       The action was initially commenced at the Salem Inferior Court, July 1770, Fuller winning a verdict and costs. The case was appealed to the Salem Superior Court, November 1770 (where Adams first entered the litigation as counsel for Smith, associated with Jonathan Sewall; John Lowell and Samuel Porter appeared for Fuller), and was continued to Ipswich Superior Court, June 1771, where it was at least partly tried before a juror was withdrawn, probably as a result of the court’s decision on the evidence questions. At the November 1771 Salem Superior Court, the case was retried, and the jury returned a verdict for Smith for £5 and £30 16s. 7d. costs. Fuller sought review, and the matter dragged on until 1778, when a final entry, “neither party appears,” closed the litigation.


Title: Adams’ Minutes of the Referees’ Hearing in Wilkins’ Suit: Middleton, July 1772
From: Adams, John
To:

       Wilkins. vs. Fuller
       Deed. Wm. Fuller to Jona. Wilkins.
       Archelaus Fuller. Known the Place there 30 years. Wilkins mowed the Land, 1 or 2 Years. Orchard, runs down to the Edge of the Brook. The Water used to help the Land. But Fullers Dam and Mill there, immediately flowed this Land of Wilkins’s and flowd over an high Way that we used to pass to Meeting. It flowd up into Wilkins’s an Acre and ½ and round several Apple Trees—8 or 10. The Ice would tear the Turffs off, and threw it in Heaps and another sort of Grass and flaggs came in the room of it. A fine Apple tree, was killd by it, as I suppose. 3 Barrells of Cyder a Year. They cutt a 2d Crop, of good Hay before the flowage. There is a Load of Hay odds, worth 9 or 10 Pounds on an Average. The ground when the Water is drawn off is black as a Hat, and a bad Smell the latter End of May. No Mill there since my Remembrance.
       Andrew Fuller. 8 or 9 Years since Fuller erected his Mill. Blue Grass before and the want of fresh Grass since. Apple trees, as good bearing Trees as ever known in an orchard. A Number of Trees gone to decay. A Sound Tree, that died. A large Body of Ice froze round it, and as the Water rose and fell the Ice rubbed the Bark off in several Places. The trees are all upon the decay, and now of little Value. Grass not half so good, as it was. Wilkins got about 2 Load, a Year. I suppose the Trees have been planted 40 Years. I remember before any of them Trees bore  of apples.
       Jacob Smith. Very good Grass better than 2 Load at 1st and 2d Crop. It has been flowd every Season, better than an Acre. The year before last and every Year before, I mowd it. The 1st Year after it was flowd there was little or no Hay, and very little at any Year since, not a Load. Imagine the Water kill’d the Trees. Bore 2 Barrells a Year upon an Average. A Load we put round the Edges.
       Robert Pierce. The Ice tore up the Ground, about the Roots and the Tree died soon. The large Tree had the bark torn off, quite thro.
       2 Witnesses about Cyder, Apples, Trees &c.
       Porter. Trespass could not be maintained because the Plaintiff not now owner of the Land. Credibility of Witnesses &c.
       Mr. Andrews. 69 years ago I helpd draw some Timber to that Mill dam. The Mill sawd Boards for our Meeting House and that is all I know. No Mill there these 50 or 60 years.
       Mr. Chandler. It does not look as if any Thing grew on it.
       Saml. Cheever.
       Rob. Indian. Damages Land, to flow and not keep up the Pond all Winter.

       Bart. Buxton. ½ an Acre flowd now  as dam up. And the flowing the ½ Acre does more hurt than flowing the whole would all Winter.
       Thos. Hart. About an Acre flowd.
       Andrew Fuller. The freshit has removd a stick and Gravel and made a stop.
       Porter. Persons interested not to be credited, and the most credible Witnesses to be believd.
       Trees tarr’d. Denyd it.
       Law regards not Trifles.
       Serjeant. Uncertainty of the Witnesses about the Number of Years. Not the stench to Mr. Smith nor the damage to the High Way.
       1st. as to damnifying the Grass. It may be attributed to the upper Mill. Jam Tree, overated.
       Col. Fuller set it at 2 dollars a Year.


Title: Wetmore’s Minutes of the Smith Trial: Essex Superior Court, Ipswich, June 1771
From: Wetmore, William
To:

       June 1771
       Smith and Wilkins v. Fuller. Bacon Trespass 212. Continuando in trespass may be waved and evidence given of any trespass before the action.
       See 2 Barnardiston 120. Trespass for disturbance in freehold; title allow’d to be given in evidence by defendant and Comyns said that any possession longer than 7 or 8 years was evidence of it.
       This action is trespass for erecting a dam on plaintiffs land and flowing it from 1765. Evidence was offered of erecting dam in 1762, but objected to it as excluded by limitation Act. Answered that it’s repealed. Judge Trowbridge seem’d to think it not repeal’d by the temporary law, and that on declaration for trespass done between 2 days certain, evidence was not admissible without those days.


Title: Editorial Note
From:
To:

       At twenty-four Adams could ask, “But Quere, if Dissonance of Dispositions is a sufficient Reason for allowing a divorce? This may be known, if sufficient Caution is taken beforehand.” Some twelve years later as counsel for Abigail Broadstreet in a divorce case involving domestic discord of the type dear to the readers of women’s magazines today, he may well have had cause to ponder this proposition again.
       Abigail Fuller had married Dr. Joseph Broadstreet of Topsfield in February 1770. Although Abigail had recently bought a small farm in nearby Middleton, the town in which her family lived, the couple, apparently for financial reasons, chose to move in with her brother Jacob. Within a few months Broadstreet became extremely restive, proclaiming to all who cared to hear that he had made a poor choice of wife in marrying a woman with no fortune but some unprofitable real estate. He said that “he was a damned fool for having of her and that he should rather have married a Negro if She had money.” Such pronouncements were accompanied by frequent threats to sell all that Abigail had and to depart with the proceeds to a more desirable location.
       By the fall of 1770 Abigail was well along with child. Her mother, hearing that Broadstreet was “very uneasy” with his wife and still threatening to leave her, summoned him to the matriarchal presence. There followed a stormy scene in which she tried to persuade her son-in-law to stay with his wife “in her difficult circumstances, she being very unwell and unfit to care for herself.” Pleas and offers of assistance were of no avail. All that Broadstreet would say was “that he was a fool for having her and that he would not tarry with her for he had much rather be in the Mines.”
       Perhaps in reaction to this interview, Broadstreet then left home. He soon returned, however, and, repenting past excesses and promising future good behavior, persuaded Abigail to move with him into her own house, about half a mile distant. Almost at once he began to threaten abandonment again. According to Abigail’s sister Mehitabel, who helped her to move, “He appeared very ill-natured, cursed his wife and cursed himself and behaved like a man in distraction, wishing that he was in Salem Gaol or in the Spanish Mines, or in the worst place in the world other than there, and screaming and hallowing and slapping his hands together.” There were moments of respite, but on the whole Broadstreet’s unsettled and unsettling conduct worsened during the next two weeks. He would waken Abigail in the middle of the night, ranting of money or screaming that the devil was coming, so that periodically she was forced to take refuge with her mother, who also lived nearby, just to get a night’s sleep. Finally, early in December, Broadstreet departed once more, taking his possessions and vowing never to see his wife again.
       After waiting a few days for her husband’s return, Abigail took up permanent residence at her mother’s in order to obtain the bare necessities of existence. Here, Broadstreet, accompanied by friends who sought to reunite the couple, visited her on several occasions. In these interviews she conceded that he had not harmed her, other than by his nocturnal out-bursts and perhaps a certain overinsistence on his connubial prerogatives. She remained adamant in her refusal to rejoin him, however, at least until winter and her pregnancy had run their courses, for she feared that an irremediable lack of funds sufficient to maintain Broadstreet in his desired style would quickly reawaken all the old dissatisfaction and lead to a resumption of his rantings. Without some security for his good behavior, which was not forthcoming, she “durst not return, for he behaved like a madman and ... he would infallibly be the death of her: not in laying violent hands upon her, but by worrying and frighting her and hindering her from sleep.”
       On several occasions Abigail agreed to go to some other location, away from her family, which Broadstreet saw as the evil influence upon her. His efforts to find a place for them to live were inconclusive, however, and each meeting seemed to end on a similar note. Broadstreet would formally invite his wife to come and live with him again, but in the same breath aver that he did not care if she ever did. In March 1771 Abigail’s child was born. Thereafter, her husband grew increasingly embittered. In calmer moments he blamed the separation on family influence, but more and more frequently he stated that he wished wife and child were dead and expressed his seeming hatred of them in a series of drastic epithets. It was reported that in February he had rented Abigail’s house, sold off her hay, and “advertised” her—that is, publicly disclaimed responsibility for her debts.
       As her strength returned, Abigail sought a divorce in a proceeding before the Governor and Council, who had jurisdiction of such questions under a Province Act of 1692. In England, questions of divorce were within the competence of the ecclesiastical courts, which applied the canon law. These courts could decree an absolute divorce, a vinculo matrimonii (from the bonds of matrimony), only when the marriage itself was a nullity because of such defects as consanguinity or impotence. In such a case the parties were free to remarry. When the grounds were adultery, cruelty, or the like, the marriage itself was held valid and unbreakable, and the ecclesiastical courts would grant a divorce a mensa et thoro (from bed and board). This was in effect only a decree of separation and maintenance, each party being barred from remarriage during the other’s lifetime. If the aggrieved party in a divorce a mensa wished further relief, he or she might, at least in a case where the grounds had been adultery, apply to the House of Lords, which would, upon appropriate investigation, order the marriage dissolved, permitting remarriage.
       In Massachusetts, because of the power of the Governor and Council, the location of jurisdiction to grant divorces a vinculo was ambiguous. The Court of Assistants in the old Colony seems to have granted this relief in cases of desertion, bigamy, and adultery, acting in its judicial capacity; but after 1692 the Governor and Council did not follow suit. From 1755 to 1757 the General Court took to itself the powers of the House of Lords, granting divorces a vinculo in cases in which the Governor and Council had previously granted decrees a mensa It was perhaps in response to these proceedings that Governor Pownall in a 1760 message to the Council raised the question whether that body had jurisdiction of divorces a vinculo as a civil, rather than a spiritual, court under the Province Act of 1692. “If not,” the Governor continued, “the Doubt then remains whether this Power lies with the Legislature of this Province or only with the Parliament of Great Brittain.” The Board of Trade had referred this question of legislative power to the Privy Council, but, although hearings were scheduled in 1759, none of the private acts granting divorces seems to have been disallowed. Perhaps through Pownall’s influence, however, the General Court granted no further divorces, and the Divorce Records of the Governor and Council show that the latter body thereafter issued numerous decrees a vinculo in cases of adultery. The relief which in England could be had only by the petitioner who could afford to go to the House of Lords, was thus available in Massachusetts in the ordinary course.
       Abigail’s libel, filed by Jonathan Sewall in July 1771, alleged Broad-street’s departure in December of the preceding year, his failure to support his wife since that time, and his constantly expressed threats to her fortune and wishes for her death. It concluded with a prayer “that by your Excellency’s and Honors’ Decree she may be divorced from Bed and Board with the said Joseph and thereby be intitled to the separate and sole use and improvement of her own Estate for the maintenance of herself and Child.” Broadstreet’s answer, propounded by Josiah Quincy Jr., denied Abigail’s allegations and attributed the separation to the efforts of “dark and mercenary Enemies to his household,” who by “insinuating arts withdrew the affections of his Wife.” Two justices of the peace were assigned to take testimony for both sides, and on 17 October, before the Governor and Council, the depositions were read and the parties heard.
       Adams’ notes of the proceedings, printed below, indicate that he argued Abigail’s case, probably with Sewall. The authorities which he collected show that the canon law, as applied in the ecclesiastical courts in England, was an important source of the Massachusetts law of divorce. He thus limited himself to questions concerning the divorce a mensa as the canon law defined it, seeking to establish that desertion and cruelty were grounds, and were present in this case.
       Under canon law the husband could be required to pay alimony after a divorce from bed and board, the theory being that, since the marriage still existed, he was merely continuing to perform the duty of support which he would have had in normal course. Since the wife by her conduct could forfeit alimony, Adams also endeavored to lay the groundwork for an argument that Abigail had not done so in this case, despite her coolness toward Broadstreet’s attempts at reconciliation. The arguments were apparently successful on all counts, for with the sole dissent of Governor Hutchinson, who did not agree “that there was a sufficient cause for a separation,” the Council decreed a divorce from bed and board. Abigail was awarded alimony of £25 per year, payable in quarterly installments, plus the costs of the proceedings.
       That the separation which Abigail sought ensued seems clear. What is less clear is her success in obtaining alimony. In 1774 she was forced to petition the Council again, because Broadstreet had paid her nothing. In accordance with the statutory procedure for the enforcement of its decrees, the Council ordered a warrant to issue for Broadstreet’s arrest. He could be held in prison until he chose to comply. Whether he was actually taken, and whether the pains of incarceration eventually triumphed over his enmity toward Abigail do not appear in the record.


Title: Editorial Note
From:
To:

       As in England, the Massachusetts justices of the peace, singly and in their joint capacity as the Court of General Sessions of the Peace for each county, formed a kind of all-purpose administrative tribunal with jurisdiction in a wide variety of local government questions. Matters within their power included tavern licensing; the construction, repair, and use of highways; militia service; assessment and collection of taxes; regulation of weights and measures, as well as the quality of food and other products; shipbuilding; land use; violation of the Sabbath; support of the ministry and schools; and welfare. In the last category were two important problems which produced substantial amounts of litigation—the settlement and removal of paupers, and the support of illegitimate children. John Adams had a number of cases in both of these fields, which demonstrate the early operation of administrative law in Massachusetts. The present case and Nos. 25, 26, and 27 concern paupers. Nos. 28, 29, and 30 are examples of bastardy proceedings, as they were called.
       The poor relief system rested on the principle that a town was responsible for the support of all indigent persons having a “settlement” within it. Under statutes in force until 1767 a pauper gained a settlement if he remained within a town for twelve months without being “warned” by the selectmen to depart. Once the pauper had been warned, he could be removed to another town by the constable under the warrant of a justice of the peace. Litigation over those provisions generally concerned the contention of the town to which a pauper had been removed that it should not be charged with his keep. The town would apply to the county Court of General Sessions for decision of the question, a matter within that court’s statutory jurisdiction. Usually the court would determine the town of settlement and would order that town to pay all charges incurred by the other town on account of the pauper.
       Although a statute provided an appeal to the “court of assize and general gaol delivery” from “sentences” of the General Sessions, there was no specific provision for review of orders in cases under the poor laws. The courts had developed the remedy of certiorari, following English practice in this and other cases in which no other appellate relief was provided. On writ of certiorari, the Superior Court limited its review to matters appearing on the face of the record, except for jurisdictional questions. The procedure on appeal in the Superior Court, however, as it was applied in civil actions and presumably in appeals from the Sessions, involved a trial de novo before a jury at which new evidence and matters outside the record could be freely offered. In the case of Roxbury v. Boston, the party aggrieved at Sessions sought to obtain this broader measure of relief.
       The case concerned the status of one Rebecca Choate, who had allegedly been warned from Roxbury with her husband in 1738. On 31 December 1763, having at some point returned, she was removed from Roxbury to Boston by warrant of a justice of the peace. There she became and remained a public charge, except for a brief stay in Roxbury occasioned by a smallpox epidemic in Boston.
       In January 1765 the Selectmen of Boston petitioned the Suffolk County Court of General Sessions for her removal to Roxbury and the return of their expenditures for her, urging that the original warrant of removal had been issued by a justice who was a Roxbury inhabitant, and therefore interested, and that Rebecca was in fact an inhabitant of Roxbury. Jeremy Gridley, who appeared for Roxbury at the April 1765 Sessions, denied that Rebecca was an inhabitant as alleged. After several continuances the case was heard in July 1766. The court found that Rebecca was not an inhabitant of Boston at the time of her warning in Roxbury or afterward, but was an inhabitant of Roxbury, and ordered the latter town to pay her charges and costs of court to Boston. The record reflects that the Selectmen of Roxbury “appealed” to the Superior Court, giving bond as the statute provided.
       The precise reason why an appeal was sought instead of certiorari cannot be determined. It is possible that Gridley wanted the case tried to a jury rather than by the court. Suffolk jury panels included jurors from the country towns, who might tend to favor Roxbury’s cause against the larger Boston. The reason might also have been a desire to offer evidence or raise issues not in the record. It is not clear whether “the record” for purposes of certiorari was merely the usual formal statement of pleadings and proceedings below taken from the record book of the lower court or whether it also included other papers from the files. If the former, there was evidence in the file from the trial in Sessions, which probably would not have been admissible on certiorari. Since this evidence tended to show that Rebecca Choate was not an inhabitant of Roxbury, Gridley may have wanted the Superior Court to consider it in reaching a decision. Whether or not this evidence was thought part of the record, it is also possible that Gridley was seeking the admission of oral testimony or additional documentary material not preserved in the file.
       Whatever the reasons for taking an appeal, the case came on in the Superior Court at the August 1766 term, with Adams and Gridley arguing for Roxbury and Otis and Fitch for Boston. Adams’ notes, printed below, indicate that the only question raised was whether an appeal lay. The Province statute providing an appeal from the Sessions seems to have been offered as the basis for the proceeding, but Otis and Fitch argued that this Act did not include determinations under the poor laws, presumably because it was limited to criminal matters. The judges apparently agreed, because they dismissed the case, “being of the opinion that an appeal does not ly, by the Province Law in this case.”


Title: Editorial Note
From:
To:

       Josiah Marshall had lived in Plympton from 1747 until 1753, and had then spent five years at Middleboro as master of the grammar school. In 1758 he returned to Plympton, but in either 1760 or 1762 moved again, to teach school at Pembroke. According to his own testimony, he remained in the latter town for two years and two months. His next stop cannot be determined with certainty, but at some point in his wanderings he was warned and removed from Plympton. It was Plympton, however, which petitioned the Plymouth County Court of General Sessions in July 1766 for a determination of his status. Since such petitions were usually brought by the town in which a pauper was actually residing, it is probable that Marshall went from Pembroke to Middleboro and was removed from the latter town to Plympton, and that his removal from Plympton had occurred earlier in his career. It is also possible that he went from Pembroke to Plympton and that Plympton then removed him, subsequently petitioning to recover its charges for the period prior to his departure.
       Whatever the facts, the case was tried at the October 1766 Sessions, with Adams as counsel for Middleboro and Paine apparently arguing for Plympton. According to their minutes (Documents I, II), the principal issue was the validity of Marshall’s removal from Plympton. Adams argued against both the warrant of warning and the warrant to remove. Against the former he raised a series of formal objections, including the failure of the selectmen to make return of the warning to the clerk of the Court of General Sessions within the time required by statute. He also attacked the removal warrant on formal grounds and raised an issue that was to be important in later cases (No. 26, No. 27), that the justice who issued it was an inhabitant of Plympton, and so interested in the outcome. The court ruled in favor of Middleboro, according to Adams’ account, because of the lack of a timely return to the warrant of warning.


Title: Adams’ Minutes of the Argument: Plymouth Court of General Sessions, October 1766
From: Adams, John
To:

       Plymton vs. Middleborough.
       Benja. Shurtliff. Deer. 21st 1753. Marshall went from Plympton to Middleborough.
       Josa. Marshall. 25 Aug. 1747 came to Plympton first, to 10 Novr. 1753. 7 July 1758, returned to Plympton from Middleborough, where I went first 21st Deer. 1753.
       2 Years and 2 months at Pembroke. Came from there 4 Years ago last Spring.
       Mem. This Cause was decided in my favour, who was for Middleborough, by a great Majority of the Court, upon this single Point, vizt. that Caution was not entered in the Clerks office within the Year. The Q. was upon the Words of Prov. Law. 4. Wm. & Mary, C. 12, the Act for Regulating Townships &c. The 9th Clause in the Act is “if any Person &c. sojourn or dwell &c. 3 months, &c. not having been warned by the Constable, and the Names, Abode and Warning returnd unto the Court of Quarter Sessions, &c. shall be reputed an Inhabitant, &c.” Not having been warned, and the Warning &c. not having been returned, within 3 months, in is the obvious and grammatical Construction.
       ’Tho many other Points were stirred by me, particularly the Warrant to carry out, was given by Justice Bradford of Plympton, and so a Person interested, and I produced the Case of the two Parishes of Great Charte and Kennington B.R. 16. G. 2. Strange Rep. 1173. Order of 2 Justices quash’d, because one was an Inhabitant of the Parish from whence the Pauper was removed.
       Making an order of removal a Judicial Act, and the Party interested is tacitly excepted out of 13 & 14th Charles 2d, c. 12, which gives the Power to any 2 Justices of Peace, as our Prov. Law does to the next Justice. Lord Raymond went off the Bench when an order of Abbotts Langley the Parish where he lived came before the Court.


Title: Paine’s Minutes of the Argument: Plymouth Court of General Sessions, October 1766
From: Paine, Robert Treat
To:

       Plympton vs. Middleborough
       Warninig.
       Shurtleffe. J. Marshall went from Plympton to Middleborough 21. Dec. 1753.
       Mr. Josiah Marshal. Came to Plympton Augt. 1747 till 20th Novr. 1753. Then to Middleborough, returned to Plympton 7th July 1758. Was Grammar School Master at Middleborough. I went to Pembroke 4 yr. ago and kept school there 2 yr. and 2 months.
       Capt. Sprout. Mr. Marshal kept School at Middleborough 5 years.

        Adams

       Pity there should be a dispute.
       Warrant of Warning no Seal no mention made of his Wife and children, not to depart within 14 days. A man and his family means nothing more than the man; Marshals Wife was born at Plymton.
       Warrant to remove, not setting forth the cause, given by a Justice in the same Town
       Strange. 1163.


Title: Editorial Note
From:
To:

       In August 1768, William Dix, a pauper, was removed from Boston to Chelsea by virtue of the warrant of John Hill, a Boston justice of the peace. The selectmen of Chelsea petitioned the Suffolk General Sessions in April 1769 for his return to Boston and for reimbursement of their expenses in his behalf. The petition, which was drafted by John Adams and is printed below, urged that Dix was not an inhabitant of Chelsea, and had not been alleged or adjudged to be such in the removal proceedings. Adams also raised the point that Justice Hill was disqualified by virtue of his residence in Boston.
       The case was heard at a May adjournment of the court and then continued. In August, at an adjournment of the July term, the court was “unanimously of opinion that Justice Hill who granted the warrant mentioned in said Petition, being at that time an inhabitant of said town of Boston had no legal power so to do and therefore that the prayer of the Petition be granted.” Boston was accordingly ordered to pay Chelsea its charges of £20 7s. 4d. and costs of £5 18s. 2d., and to accept Dix back.


Title: Adams’ Petition: Suffolk Court of General Sessions, Boston, April 1769
From: Adams, John
To:

       Suffolk Ss. To the Honorable his Majestys Justices of his Court of General Sessions of the Peace held at Boston in and for the County of Suffolk on the Third Tuesday of April in the Ninth Year of his Majestys Reign Annoque Domini 1769.
       Humbly Shew Thomas Pratt, Gentleman, Samuel Sprague, Yeoman, Samuel Serjeant, Gentleman, Samuel Watts Jnr, Gentleman, Samuel Pratt, Gentleman, all of Chelsea in said County and Select Men and overseers of the Poor of the Said Town,
       That on the Twenty third day of August Anno Domini 1768, one William Dix, a poor impotent Man, was, by Force of a Warrant given by John Hill Esqr. a Justice of the Peace for Said County, on the Twentyeth day of August A.D. 1768, at the prayer of on the Complaint of John Sweetser, by order of Joseph Jackson Esq. and other the select Men of the Said Town of Boston, removed from thence into the aforesaid Town of Chelsea, as the proper Place of his Abode, there to be relieved and Supported, at the Charge of the Inhabitants of Said Town of Chelsea. That the Said William is poor, lame, and utterly unable to support himself, and has been relieved and supported by the Inhabitants of Said Chelsea ever since his Removal to that Town at the Expence of Twelve Pounds six shillings and Eight Pence of lawfull Money.
       Now your Petitioners apprehend and aver that the aforesaid Removal was and is contrary to Law for these Reasons among many others.
       1. Because the Said William Dix was not at the Time of his said Removal an Inhabitant of Chelsea nor had any legal settlement there, nor was the Poor of that Town, nor was Chelsea the Town where he had his last Residence.

       2. Because the said Dix is not alledged in the aforesaid Complaint of John Sweetser by order of the select Men of said Boston, to be an Inhabitant of said Chelsea, or to have a legal settlement there, or to be the proper Poor of that Town or to have had his last Residence there nor are any of these Things alledged or averred in the said Warrant of the said Justice.
       3. The said Dix is not adjudged, by said Justice in said pretended Warrant, to be an Inhabitant of said Chelsea, nor to have a legal settlement there, nor is there in said Warrant any Adjudication that said Dix had his last Residence in said Town of Chelsea.
       4. The said worshipfull John Hill Esq. was at the Time when said pretended Warrant was given an Inhabitant of said Town of Boston, and Rated for the support of the Poor there, and therefore interested in Said Removal, and disqualifyed for that Reason for giving a Warrant in such Case.
       For these Reasons and many others your Petitioners say that the said William Dix was illegally removed from Boston aforesaid into Chelsea aforesaid, and that the Inhabitants of Chelsea aforesaid ought not to be at that Charge and Expence of relieving or Supporting him, but that the Inhabitants of Boston aforesaid ought to be at that Charge: And your Petitioners humbly pray your Honours would accordingly order that the said William Dix be removed back again from said Chelsea to Boston aforesaid, there to be relieved and supported at the Charge of the Inhabitants of said Boston for the future and that the Inhabitants of Chelsea may be reimbursed the Expences they have been been at and may be at for such support untill such Removal back into Boston aforesaid, together with the Costs and Charges of this supplication.
       And your Petitioners as in Duty bound will ever pray.

        John Adams for said Petitioners


Title: Editorial Note
From:
To:

       The constable of Roxbury had conveyed John Chaddock (alias Chadwick, Chattuck, or Shattuck), his wife, three children, and assorted household goods, to Brookline in January 1767, pursuant to a warrant of removal issued by a Roxbury justice of the peace. In 1760 the selectmen of Roxbury had warned a John Chaddock, or Chadwick, and family, out of the town after a two months’ stay. They now asserted that these families were the same, so that the statutory prerequisite of warning within a year after arrival had been complied with.
       Brookline contested the removal, petitioning the Suffolk General Sessions in May 1767 for the return of Chaddock to Roxbury and for the town’s expenses. Jeremy Gridley signed the petition, but Adams’ list of questions presented (Document I) and notes of authorities (Document II) indicate that it was he who argued the case when it finally came on after numerous continuances in November 1768, Gridley having meanwhile died. The petition, which sets forth other documents in the case, appears below as part of the record of the Sessions proceedings (Document III). It urges ten grounds for quashing the removal order, which are principally attacks upon the formal sufficiency of the warrants of warning and removal. Gridley had also contended, however, that the man removed was not the man warned, and that the removal warrant was void because the justice issuing it was an inhabitant of Roxbury and thus interested in the outcome.
       Adams’ questions presented (Document I) correspond with the grounds of the petition, with two additions: (1) whether a Justice in such a case acted ministerially or judicially (which was related to the problem of interest); (2) whether evidence beyond what Adams called “the Records of this Court” (the warrants and returns) was admissible. Probably Roxbury sought to establish the identity of various persons named in the warrants and thus to cure the alleged defects in them. It is not clear why Adams raised this point. In Roxbury v. Boston, No. 24, depositions and other documentary evidence seem to have been at least offered in the trial at Sessions, and were probably accepted, since they formed part of the file of the case. The issue was not reached on the trial in the present case, however, in view of the court’s ruling on the merits, to be discussed below.
       The three groups of authorities which Adams had prepared for the trial (Document II) give some indication of the issues which he sought to emphasize in argument. The first group deals with the necessity for particularity in naming persons ordered to be warned or removed. The second group consists principally of the forms followed in English removal proceedings, which were based upon a statute similar in its generality to the Province Act here involved, but which set forth in detail just those matters which were unclear in the warrant now before the court. Finally, Adams raised the issue of the interested justice, citing authorities which he had used in Plympton v. Middleboro, No. 25.
       At the trial, Robert Auchmuty, counsel for Roxbury, in effect demurred to the petition. Upon motion the court gave its opinion, set out in the record (Document III), that Brookline’s allegations were not sufficient to entitle the town to a trial of the question whether Chaddock and family had a settlement there or in Roxbury. This ruling in effect meant that the 1760 warning was effective to prevent the Chaddocks from gaining a settlement in the latter town. Roxbury then moved to dismiss, but on further argument the court instead upheld the petition, presumably on the ground that the removal warrant was in some way faulty. Roxbury was ordered to pay Brookline Chaddock’s charges and costs of court; and the Chaddocks were to be returned. Brookline’s account for £67 16s. 4 ¾d., which was approved by the court in January 1769, is set out as an example of the scope and quantity of 18th-century poor relief (Document IV). Execution issued for the sum there stated and costs of £6 3s. 4d. on 9 March 1769.
       At the March 1769 term of the Suffolk Superior Court, Fitch moved in Roxbury’s behalf for a writ of certiorari. This process, by which a higher court could command an inferior court to certify and send up the record of its proceedings, had been used in England since some time in the 17th century to quash an order of Sessions, but had been adopted in Massachusetts at a relatively recent date. The documents involved in this case, which are an interesting example of the adoption of English forms to local needs, are set out below. The writ issued in July, returnable at the August term (Document V). Return was duly made both of the Sessions record (Document III) and of copies of other formal papers from the file. Fitch then filed an assignment of errors sometime before March 1770 (Document VI). This form, not used in the English practice, suggests that in Massachusetts certiorari was viewed as not differing materially from the writ of error, in which the assignment was part of the proceedings both in England and in the Province.
       The errors which Fitch assigned are of interest in light of the 18th-century English limits on the scope of review in certiorari to quash. In the English practice, through an accident of historical development, only matters denominated “jurisdictional” had to appear on the face of the record, but an order could be quashed if such matters did not appear. If jurisdictional matter was set out, however, evidence outside the record, in the form of affidavits, was admissible to attack it. Matter of record that was not “jurisdictional” could be attacked if on its face it was not consistent with the order, but no additional evidence was admissible for this purpose. Naturally enough, this practice gave rise to much doubt as to the meaning of “jurisdictional,” and the term was often expanded to include issues which might not ordinarily seem to be within it. It should further be noted that the “record” in the English practice was only the formal statement of the court’s judgment and order, not the entire pleadings and proceedings below, which the term usually signifies.
       The first four errors assigned by Fitch (Document VI) were jurisdictional in the broadest sense. Together they were to the effect that only the merits of the question of a pauper’s settlement, and not errors of law in the proceedings had with regard to him were within the court’s jurisdiction. This order had to fall, because it granted the petition not only in the absence of necessary allegations or findings on the merits, but despite a specific finding that there was no question on the merits. The second assignment of error, attacking the petition, would presumably have been irrelevant under the English practice whereby jurisdiction had to appear in the judgment or order itself. The fifth error assigned attacked the absence of various findings in the record. In the English view, if any of these had been “jurisdictional” the order would have been fatally defective for lack of them.
       After notification of Brookline to appear in March 1770 (Document VII), the case was further continued until February 1772, when with Adams and Fitch arguing, it finally came on for hearing. According to a note in Adams’ docket, the matter was “determined for Brooklyne, 7th day upon Argument of all the Errors filed.” The Superior Court affirmed the judgment, with further costs of £9 13s. 3d. In the narrowest view this decision held only that the Court of General Sessions had jurisdiction to deal conclusively with errors of law in the record before it and that the matters set forth in the fifth assignment as omitted from the order were not “jurisdictional.” But it is possible, in light of Adams’ description of the result, that the court, in examining “all the Errors,” looked to the record itself and affirmed the decision of the Sessions on the legal questions.
       Whatever the force of the court’s holding, the decision in this case seems to be related to a statutory change made several months later. In Chelsea v. Boston, No. 26 (1769), the Suffolk Sessions, after its decision in the present case, had expressly held that a removal warrant was void because issued by a Justice who was an inhabitant of the removing town. The court must have followed this rule in other cases as well, because in June 1771 the Selectmen of Boston petitioned the General Court for a change in the law, complaining “that the Court of General Sessions of the Peace for this County have of late construed said Acts in a different manner, by adjudging that a removal by virtue of a Warrant from a Justice of the Peace of this Town is not a legal removal as said Justice is somewhat interested therein, and that it properly lays with one of His Majesty’s Justices of the Peace of a Neighbouring Town to grant said Warrant—That in consequence of this novel construction of said Acts this Town has already been put to considerable charge and difficulty, which from its peculiar situation and circumstances, and the great number of Vagrants and other poor Strangers which dayly flow in upon us, is like greatly to increase.”
       The Committee to which this petition was referred recommended that it be put over until the next session. On 14 July 1772 an act was passed which recited that the practice of which Boston had complained was followed in “the courts of general sessions of the peace for several counties . . . whereby a number of towns in the province, more especially the town of Boston, have been put to much inconvenience and charge, and the expence of the province is likely to be greatly encreased.” The act went on to provide that “the removal of any person, by a warrant obtained from one of his majesty’s justices of the peace residing in the town from whence the person is to be sent or conveyed, to any other town, either in or out of the province, shall, to all intents and purposes, be deemed as legal a removal as if the warrant had issued from a justice of the peace living in any other town.”
       On the trial of Brookline v. Roxbury at the Sessions in 1768, Adams had urged the invalidity of the warrant on the grounds of the Justice’s residence, but the issue had not been expressly referred to by the court as part of the basis for its decision. The question was an important one, however, and may well have been the principal defect which the court found in the warrant of removal. If this was so, it is possible that legislative action was deferred pending the outcome of the proceedings on certiorari, with the hope that the Superior Court might overrule the Sessions on the point. When, instead, the result was a holding which at least recognized the power of the Sessions to rule on such questions without interference from above, and may even have gone so far as to indicate approval of the rule followed in the lower court, the only remedy left was the legislation which was forthcoming.


Title: Adams’ List of Questions Presented: Suffolk Court of General Sessions, Boston, November 1768
From: Adams, John
To:

       Town of Brooklyne vs. Town of Roxbury
       A great Number of Questions arise upon this Petition.
       1 st. Whether a Justice of the Peace, can by Law, issue a Warrant for the Removal of a Pauper, from the Town where the Justice is an Inhabitant?
       2. Whether a Warrant from the Select Men or Overseers of the Poor in a Town, to warn Strangers to depart, is good without warning those Strangers particularly?
       3. Whether the Person warned in this Warrant of the Select Men is the Same Person, named in the Return of the Constable, and whether the Person named in the Justices Warrant is not a different Person from that named in the select Mens Warrant, and different also from him named in the Constables Return?
       4. Whether the Justices Warrant, commanding the Constable of Roxbury to deliver the Pauper to the Cons of Brooklyne to receive the Pauper, and deliver him to the Select Men, is good, not being directed to the Constable of Brookline or Select Men of Brookline, or any Body else, but to the Constable of Roxbury?
       5. Whether the Justices Warrant can be good, as it admits that the Pauper had lived Six Years in Roxbury, and only Says under Warning. i.e. when it appears upon the Face of the Warrant, that the Pauper had lived in the Town long enough to gain a Settlement by Law, whether the Particulars of his Warning out should not be set forth, i.e. the Time when, and the Authority by which, he was warnd to depart.
       6. Whether a Warrant of Removal can be good, without setting forth with Certainty, one of these Things, vizt. Either that the Paupers legal settlement was at the Town he is to be removed to, or that he is an Inhabitant of that Town, or the Poor of that Town, or had his last Residence in that Town? Now in this Warrant it is only set forth disjunctively, Either that the said Pauper properly belongs to Brookline, or had his last Residence there.
       7. Whether there is any Authority in Law for a Justice to command a Constable in his Warrant to remove the Goods and Effects of the Pauper?
       8. Whether a Warrant of Removal should by Law be made returnable to the Clerk of the Peace, or the Justice who issued it.
       9. Whether, in the Discussion of this Case, we must not be confined to the Records? Or Whether Roxbury shall be admitted to give any Kind of Evidence in Explanation or Reconciliation of these Records, i.e. these Warrants and Returns? For these Warrants and Returns are all of them Records. Even the Warrant of the Select Men must by Law be returned to the Clerk of the Peace and made a Part of the Records of this Court.
       10. Whether a Justice of the Peace, in granting a Warrant of Removal, is a Judicial or merely a ministerial officer?
       11. Whether a Justices Warrant of Removal ought not to be quashed for Uncertainty when it orders the Removal of a Person and his family, without naming Wife or Children, or when it orders the Removal of a Pauper and his Children or 5 Children, without naming those Children or ascertaining their ages.
       12. Whether the Select Men in their Warrant for Warning, requiring the Constable to warn John Chaddock and Family, Jonathan Smith, Jona. Smith Jnr. and Mrs. Cammell all and every one of the above said Persons, to depart in 14 days, or give security, from all Charge that may arise by means of any or Either of the said Persons, have not renderd their own Warrant void? For by Law, no Person warned out is obliged to give security for 20 other Persons, it is sufficient if he gives security for him self and his own family.


Title: Adams’ Notes of Authorities: Suffolk Court of General Sessions, Boston, November 1768
From: Adams, John
To:

       Brooklyne vs. Roxbury.
       Prov. Law. Page 23. Names returned.
       2. Salk. 482. Anonimous. 3 Men and families.
       2 Salk 485. Sylvanus Johnson.
       Foleys Poor Laws 427. Lenham vs. Peckham.
       Foley 426. Flixton vs. Roston.
       Form of an order of Removal, Burn V. 3, P. 378. V. 3, Page 377.

       13 & 14 Car. 2, Chap. 12, cited in Burn V. 3, P. 375.
       Prov. Law, 4 W. & M. c. 12.
       Justice shall not act in his Town.
       2 Strange 1173 Great Charte and Kennington. Foley Page 104. Statute, 16 George 2d, c. 18. Act to impower Justices.


Title: Record: Suffolk Court of General Sessions, Boston, November 1768
From: UNKNOWN
To:

        Suffolk Ss:
        [seal]
        At a Court of General sessions of the peace held at Boston within and for the county of Suffolk by adjournment on Monday the seventh day of Novr. A.D. 1768.

       The Petition of the Selectmen of the Town of Brookline in the county of Suffolk, setting forth that on the thirtieth day of January 1767 the worshipful Joseph Williams Eqr. issued a warrant in these words, vizt., Suffolk Ss. Complaint being made to me the Subscriber, one of his Majestys Justices of the peace for said county, by Mesrs. John Child, Aaron Davis, and Eleazer Weld, Gentlemen and Selectmen of Roxbury and overseers of the poor in said Town, that one John Chaddock alias Chadwick alias dictus Chattuck or Shattuck late of Brookline with his family, vizt. a wife and four Children, all in distressed circumstances, the said John being delirious so as to become chargeable to the Town of Roxbury where they have resided and under warning between six and seven years, praying that a Warrant may issue forthwith to remove the said John and family back to Brookline from whence they came. These are therefore in his Majesty’s name to will and require you and either of you to apprehend the Body and Bodies of the said John Chattuck and family with their effects and them safely remove and convey by the best way and means you can to the constable of the Town of Brookline who is alike required to receive them and take all due care to notify the Selectmen of Brookline or overseers of the poor of said Town to which he properly belongs or had his last residence, that such care may be taken and provision made for their support as may be needful. And you are to remove the said Chattuck and family &c. at his own charge if able to pay the same, otherwise at the charge of the Town of Roxbury, for all which this shall be a Sufficient warrant. Fail not and make due return of this warrant and your Doings thereon to the Clerk of the Court of General Sessions of the peace for said county of Suffolk as soon as may be. Given under my hand and Seal at Roxbury this thirtieth day of January A.D. 1767 and seventh year of King Georges reign. Joseph Williams. Which was afterward delivered to John Wood a constable of the said Town of Roxbury to be executed who returned his doings thereon in these words, viz. Suffolk Ss. Roxbury January 30 1767. By virtue of this warrant I have taken the Body of the within written John Shattuck and his wife and a Bed and beding and delivered them to William Davis constable of Brooklyn. February the 3 & 4th, I have further taken three children of the said John, viz. Martha and John and Mary and two beds and beding, a Pork tub, pots and kettles, brass and pewter knives and forks, corn and meal tubs, Chairs, Cyder, Cyder-barrels &c. being all the Indoor moveables of the aforesaid John Chattuck alias John Shattuck and conveyed them to the Town of Brooklyn and delivered them to the wife of the said John Shattuck at Brooklyn aforesaid. John Wood constable. And the said William Davis constable of the Town of Brooklyn made his Indorsement on said warrant in these words: Suffolk Ss. Brooklyn, January the 30. 1767. By virtue of this warrant I have received the within written John Shattuck and his wife and bed and beding and delivered them to Isaac Gardner Esqr. one of the Selectmen of Brooklyn aforesaid. William Davis constable. And the said John Shattuck his wife and three children are now in consequence of said warrant resident in said Brooklyn at the expence of the same Town for their maintenance which ought not to be for that it is acknowledged in said warrant that the said poor had lived above six years at said Roxbury and by Law therefore were their poor and ought not to have been removed then unless lawfully warned from the same Town. Tis true there was a warning in the year 1760 hinted in the said warrant which the said Town of Roxbury relies upon for good and sufficient warning in this case, the warrant for which and the Return of it are in these words, viz. Suffolk Ss. In his Majestys name you are hereby required forthwith to warn John Chaddock and family at Mr. Bourroughs, Jonathan Smith at Mr. Ebenezer Whitings, Jonathan Smith junr. at Thomas Lyons, and Mrs. Campbel at Mr. Whitings, also all and every one of the abovesaid Persons to depart the Town of Roxbury in fourteen days or give Security to the Selectmen to Indemnify the Town from all charge that may arise by means of any or either of the said persons, and you are to make Return hereof to the Clerk of the General Sessions of the peace in said county together with a certificate of the place of their last abode and the time of their residence here as the Law directs. By order of the Selectmen of Roxbury aforesaid, Samuel Gridley Town Clerk, Augt. 1st, 1760. Suffolk Ss. August the 1st. 1760. By virtue of the within I have warn’d the John Chadwick and family, viz. his wife and four children, to depart this Town who came from Brooklyn and had resided in Roxbury about two months, Jonathan Smith and Jonathan Smith junr. who had resided in Town three or four months and came last from Woodstock, and Mrs. Mary Campbel who had resided in Town two months and came from Boston. All and every of the above I have warned to depart the Town in fourteen days or give bond to Indemnify the Town. Attest, per Nathaniel Davis constable. Whereupon the complainants say that one John Chadwick was the Person warned to depart the said Town of Roxbury by force of the first of said warrants and John Shattuck was the Person removed by force of the second of said warrants which are two different names and denote two different familys. The first of said warrants requires John Chaddock and his family to be warned to depart said Roxbury or give Security but does not mention the Persons of his family ordered to be so warned by name as it ought to have done, and the constable in his return to it says that he has warned the said John Chattuck and family, viz. his wife and four children, to depart said Town but has not returned their names as he ought to have done. The constable of the said Town of Roxbury is required by the first of said warrants to warn diverse persons and John Chattuck among the rest, as therein is set forth, all and every one of them to depart the said town of Roxbury in fourteen days or give security to the Selectmen to indemnify the Town from all charge that may arise by means of any or either of the said persons. The constable of the Town of Brookline is required by the second of said warrants to receive the persons so removed and to notify the Selectmen of said Brooklyn, and yet the warrant which requires it is not directed to him as it ought to have been. The same warrant does not mention either of the three children thereby required to be removed by name as it ought to have done. The same warrant admits that John Chattuck required to be removed has resided in said Roxbury more than six years last past and alledges it to be under warning but does not set forth of what nature this warning was. The same warrant as the Gist of it sets forth disjunctively that the said John Chattuck properly belongs to the said Town of Brookline or had his last residence there but does not set forth either of them in certain as it ought to have done and is not traversable. The constable of said Roxbury is by the same warrant ordered to take the effects and deliver them with the Body of the owner of them which is against Law. The said Joseph Williams who subscribed and issued the same Warrant as a Justice of the peace was then, had been many years before and is now an Inhabitant of the said Town of Roxbury and rated for the taxes set for the poor there. The said warrant issued by Joseph Williams Esqr. is therein made returnable to the Clerk of the Court of the General Sessions of the peace and it ought to have been made returnable to the said Joseph Williams Esqr. the Justice of the peace who issued it. Wherefore the Selectmen of the said Town of Brooklyn, inasmuch as its confessd above that the said John Shattuck had lived more than six years last past before said removal in the said Town of Roxbury, for want of any sufficient warrant for warning him to depart said Town of Roxbury or giving security to the Selectmen of it, and for want of any sufficient warrant to remove him to the said Town of Brooklyn, and for the illegality of said warrant and the return thereupon, prays judgment that the said John Shattuck, his wife, and children, Martha, John, and Mary, so removed, may be returned to the said Town of Roxbury, and for the said Town of Brooklyn’s expences for his wifes and three children, maintenance and other incidental necessary expences for them since their said removal, and for the costs. This Petition was preferred to the Court at its Sessions by adjournment on the fifth day of May A.D. 1767 when it was read and then ordered that the Selectmen of the Town of Roxbury should be served with a copy thereof, that they appear on Wednesday the tenth day of June following to shew cause if any they had why the prayer thereof should not be granted. And they being served with a copy appeared and by Robert Auchmuty Esqr. their Council said first that this honorable Court ought not to take cognizance of the matters and things shewn forth herein by the said Selectmen of the Town of Brooklyn because the same are only such matters as are properly enquirable into as error and not appertaining to the merits of the cause, and secondly that the matters and things offered and objected by the said Selectmen of Brooklyn aforsaid are not sufficient for this Court to grant the prayer of said Selectmen of Brooklyn on. Wherefore the Selectmen of said Roxbury pray the Court to dismiss this petition and for their reasonable costs. And then the same was continued to the next sessions in July following and from thence to the next Court and so from Court to Court until this time by order of Court and with the consent of parties. And they being now heard upon said pleas, the Council for the Town of Roxbury moved that the opinion of the Court may be taken whether there is Sufficient matter alledged in the petition of the Town of Brooklyn for the Court to proceed to the tryal of the merits, and thereupon the Court deliver it as their opinion that there is not matter sufficient in said petition whereby the Court may proceed to an hearing of the merits so far as to determine whether said Shattuck and family are the proper poor of Roxbury or Brookline. Then it was moved that said petition be dismiss’d, but the Court are of opinion that it be not dismiss’d and upon a further hearing of the parties it is Considered by the Court that the prayer of said petition be and hereby is granted and ordered that the Inhabitants of the Town of Roxbury pay and refund unto the Selectmen of the Town of Brooklyn all such charge and expence as has arisen to them for the support and Maintenance of said John Chadock alias Chadwick alias Chattuck or Shattuck and his said wife and children untill this time and that they be returned to the said Town of Roxbury and also pay to said Selectmen of Brookline all the Costs that have been occasioned on their application to this Court in this matter.


Title: Brookline’s Account: Suffolk Court of General Sessions, Boston, November 1768
From: Roxbury, town of,White, Benjamin,Gardner, Isaac,Harris, John,Goddard, Jonathan,Griggs, Thomas,Avery, John
To: Brookline, town of

        Brookline Novr. 7. 1768

          The Town of Roxbury to the Town of Brookline

         1767

         Dr.

         Jan. 30
         To Isaac Gardner Esqr. for boarding Jno. Shattuck and wife 3 days to two mens watching and Attendance

         18

         Feby.
         To 2 days spent upon said Shattuck account

        8

         To 1 Day Ditto

        3

         6
         To Deacon Ebenr. Davis for supplying to said Shattuck family

        5
         8

         To keeping said Shattuck’s horse 18 days

        7
         8

         To cash to said Shattuck’s wife

        6

         To ½ day his mans attendance on said Shattuck

        4

         To sundry to said Shattucks Family

        3
         1

         To 2½ days Attendance on said Shattuck

        10

         Mh. 2
         To keeping said Shattucks horse 13 weeks @ 3 per week

        1
         19

         To Danl. Sanders for watching 4 Nights with said Shattuck

        6

         To Fish and Greenwood for watching with Ditto 1 night

        3

         To Antho. Marion for watching with Ditto 4 nights

        6

         To Edward Williams for Ditto 2 nights

        3

         To George Brown for Ditto 3 nights

        4
         6

         To Micah Grout for Ditto 1 night

        1
         6

         To Capt. Parker for 2  candles for Shattuck

        1
         5
         ¾

         Feby. 12
         To Benja. White for time and expence to Andover with said Shattuck

        14

         22
         To time and expence to Ditto

        12
         11

         To 2 days on Shattucks Account

        8

         To his mans Attendance on Shattuck

        4

         12th
         To Majr. Robert Sharp for time and expence to Andover and cash to the Doctor for said Shattuck
         1
         13
         4

         To 2½ days Attendance on said Shattuck

        10

         To his sons Attendance on Ditto

        1
         6

         To keeping Shattucks horse

        3

         To Mr. John Harris for time and expences to Andover with Shattuck
         1
         9

         22
         To time and expence to Andover and cash to the Doctor for Ditto
         1
         18

         To Wood and other Supplies to said Shattuck and family

        18
         5

         To Docr. Eliphalet Downer for keeping said John Shattuck and Attendance 8 weeks from the 23d. Feby. 1767 @ 13 per week
         5
         6
         8

         To Alexdr. Young for Bread and milk for Breakfasts for said Shattuck while in Goal 17 weeks @ 2 per week
         1
         14

         £22
         2
         3
         ¾

         1767

         July 29
         To Mr. Enoch Brown for 2 check shirts for said Shattuck
         0
         15

         Apl. 19
         To Benja. White for boarding Mrs. Shattuck and daughter Mary 26 weeks at 10 per week
         13
         0

         To keeping Ditto 21 weeks @ 7/4 per week
         7
         14

         To keeping Shattuck 24 weeks from the last Octr. @ 8 per week
         7
         4

         To keeping said Shattucks horse 25 weeks to grass @ 2 per week
         2
         10

         1768

          March 15
         To keeping Ditto 11 weeks to hay @ 5/4 per week
         2
         18
         8

         To keeping Mrs. Shattuck and Daughter Mary 23 weeks @ 6 per week
         9
         18

         To nursing said Shattucks daughter Mary in Sickness
         0
         6
         8

         To keeping Shattuck himself 8 weeks @ 5/4 per week
         2
         2
         8

         To nursing Ditto in his late sickness
         0
         5
         4

         To Stephen Brewer for house rent for said Shattucks goods and damages done to His house
         1
         16

         To Docr. Jona. Davis for medicine and Attendance for Jno. Shattuck wife and daughtr. Mary from Octr. 2. 1767 to Apl. 29, 1768
         4
         9
         8

         To Ditto for 1 weeks board
         0
         12

         53
         12

         Brot from the other side
         22
         2
         3
         ¾

         75
         14
         3
         ¾

         Deduct by order the whole keeping of the horse
         7
         17
         11

         Allowd by the Court and Costs.
         £67
         16
         4
         ¾

        Brookline Novr. 8. 1768. Errors Excepted per Benja. White Isaac Gardner John Harris, Jno. Goddard, Thos. Griggs
        Selectmen of Brookline

        Boston January 31. 1769
       We the Subscribers having Attended the Selectmen of Roxbury and considered the Account exhibited by the Town of Brookline relative to the Pauper Shadwick who was removed from Roxbury to Brookline do report that the Town of Roxbury pay to the Town of Brookline Seventy one pounds fourteen shillings and 3¾ being in full for their charges in maintaining and supporting said Pauper with their legal costs of prosecution in behalf of John Hill, Samuel Pemberton Esqr. and self John Avery.


Title: Writ of Certiorari: Suffolk Superior Court, Boston, July 1769
From: UNKNOWN
To:

        [seal] Province of the Massachusetts Bay Suffolk Ss
        George the third by the grace of God of Great Britain France and Ireland, King Defender of the Faith &c.

       To our trusty and well beloved Samuel Welles Esqr. first Justice of our Court of General Sessions of the peace for the said county, Greeting.
       Willing for certain causes to be certified of the Record of the process Order and Sentence of a Court of general Sessions of the peace held at Boston in and for said county by adjournment on the seventh day of November last, upon a petition of the selectmen of Brooklyn in said county, then and there heard and adjudged (as it is said) before you and your Companions Justices of the same court: We therefore command you that the said Record, with all things touching the same fully and entirely as the same remains before You, You send before Us in our Superiour court of Judicature, Court of Assize and general Goal Delivery, to be held at Boston in and for the county of Suffolk on the last tuesday of August next, under your Seal together with this writ: hereof fail not; Witness Thomas Hutchinson Esquire, at Boston the twenty seventh day of July in the ninth year of our Reign, Annoque Domini 1769.

        Nat. Hatch Cler.

        To the Honorable His majesty’s Justices of His Superior court of Judicature &c. above mention’d I herewith send the Record within mention’d with all things touching the same.
       Samuel Welles