Appendix IV


(With many thanks to Mark A. Walsh, Esq., Massachusetts Bar)


August Term (1762)

II Georgii Ter. In Sup. Cur.


The Honourable Thomas Hutchinson, Esqr., Chief Justice Benja: Lynde, John Cushing, Peter Oliver, Esqr., } Justices



Poor v. Dougherty (1762)


Plaintiff sued Defendant for false imprisonment because Defendant had accused him of theft and caused him to be arrested and imprisoned by JP pending hearings. Defendant failed to appear at the hearing and Plaintiff was released by JP and charges dropped. Also included are the oral arguments of counsel: Otis and Thacher for Plaintiff, and Gridley for Defendant. Quincy records two issues, whether a Justice of the Peace can be admitted as a witness to proceedings that occurred before him, and whether the Justice’s mittimus (“we send,” a writ used to send records from one court to another) can be admitted as evidence of the proceedings to the jury.

Justices ruled unanimously that the JP could not be admitted as a witness for proceedings before him, but permitted the mittimus to be admitted to jury as evidence, for the limited purpose of proving the arrest, by a 3 to 2 vote.


Baker v. Frobisher (1762)


Quincy presents only the issue of whether there is an implied warranty of merchantability in a sale of soap. The justices ruled there was such a warranty, but allowed an affirmative defense that the Plaintiff’s wife, who contracted for the soap, had seen a sample.


Ingraham v. Cook et al. (1762)


Defendant argued that a new ‘indorser’ of a writ was required whenever the present indorser appeared to be unable to answer costs. Held: in this case the Plaintiff had a “considerable sum of money at interest” and the Defendant’s motion was denied. No authorities cited.


Newman v. Homans (1762)


Issue: whether a Principal is entitled to charge a Factor (agent) interest for money received by the Factor on the Principal’s account. Held that a Principal could charge interest after a reasonable amount of time.


Zuill v. Bradley (1762)


Issue: whether a writ can be abated by pleading that the party was not specified as either “junior” or “senior” when a father and son of the same name lived in the same town, and that the Defendant’s occupation was inaccurately described. Held: it was a misnomer sufficient to abate the writ.


Blower v. Campbell (1762)


Defendant pleaded for abatement of a writ where he was referred to as a blacksmith, when he was in fact a nailor. Plaintiff replied that a nailor was a species of blacksmith. Defendant countered that there was a distinction because neither knew anything of the other’s trade. Held that the writ was good because the nailor had done some blacksmith work and a nailor was indeed a type of blacksmith.


Jones v. Belcher (1762)


Where a bond was given to a person here to secure a debt in England, should English or New England’s interest rates apply? As the recipient of the bond was located in New England, he should receive the New England rate.


Minot v. Prout (1762)


This was a controversy about a debt on a bond secured by a mortgage. Thacher for Defendant, Dana for Plaintiff. Defendant alleged that Plaintiff elected to enter on the mortgaged premises and therefore was barred to sue on the bond. The Court disagreed.


Dudley v. Dudley et al. (1762)


This was an important case about the will of Gov. Dudley. The issue was whether one of the beneficiaries took land in fee simple or fee tail. Quincy reproduces the lengthy oral arguments of each side and includes their numerous citations to English authorities. Kent and Trowbridge for the Fee Simple, Gridley and Auchmuty for Fee Tail. Quincy records that the Chief Justice delivered an opinion in favor of the Fee Simple.


Jackson v. Foye (1762)


Issue: Is a handwritten “Note of Hand on Interest” evidence of an express contract to waive reimbursement of taxes? Quincy presents brief of facts, issue, holding and jury instruction. No authorities cited. Held: yes.


Wiswall v. Hall (1762)


Plaintiff and Defendant had submitted a dispute to referees and were instructed by the referees to bear their own costs. Plaintiff sued on an alleged parole, collateral promise from Defendant to pay all costs. Court ruled unanimously that Plaintiff could not offer parole evidence to contradict a matter of record.


Sayer et al. v. Thorp et al. (1762)


Quincy presents issue only: Whether the owner and lessee of a vessel could join in the same action for trespass against party accused of taking it. Quotes from Gridley’s arguments on the nature of the Trespass and Debt actions. No authorities cited. The parties eventually agreed they could, so the Court did not decide the issue.


Oliver v. Sale (1762)


Plaintiff sued Defendant for selling him two free mulattoes as slaves. Otis for Defendant, Thacher for Plaintiff. No authorities cited. Held: the Defendant sold the boys without an express warranty, and should prevail.


Hallowell v. Dalton (1762)


Can a justice take evidence from a man who was soon going to sea, before the writ had been served? Held: yes, pursuant to Province Law 2 William 3, c. 11 (1701).


Gould v. Stevens (1762)


Plea in abatement of an attachment against an executor for the debt of the decedent. Quincy presents synopsis of arguments of Thacher for abatement and Sewall contra, citing to English authorities. Judgment for abatement, as the Plaintiff should have sued the estate, instead.


Memorandum (1762)


The list of lawyers called to the Bar and appearing in barrister’s robes that term: a Who’s Who of the Boston Bar.

February Term (1763)

III Georgii Ter. In Sup. Cur.

Present: The Honourable Thomas Hutchinson, Esqr., Chief Justice Benja: Lynde, John Cushing, Chamber Russell, Peter Oliver, Esqr., } Justices


Wrentham Proprietors v. Metcalf (1763)


Motion that proprietors who were not among those who brought the suit should be admitted as witnesses, as not having an interest in the suit. English authorities cited. Held: not admitted. Chief Justice: no matter how small, the proprietors had an interest.


Derumple v. Clark (1763)


Quincy presents the procedural history of this action against a landlord by a tenant for the recovery of the landlord’s contribution towards the taxes, pursuant to a Province Law. The Defendant argued there was an implied agreement by the Plaintiff tenant to pay. He reproduces the lengthy oral arguments of counsel: Auchmuty for the Plaintiff, and Thacher for the Defendant. No English authorities cited. He also reproduces the oral opinion of the justices and records a judgment in favor of the Defendant, as in Jackson v. Foye, Case 10, supra. Here, however, there was no explicit contract at all by the Plaintiff to pay the tax, only an “implied one.”


Daniel v. Bullard (1763)


A deposition was offered, which was conducted without notification of the opponent, because the witness was “immediately going out of the Country.” Deposition not allowed. No authorities cited.


Barnes v. Greenleaf (1763)


In an action against Sheriff for the release of a Defendant, issue was whether a Sheriff could introduce as a witness the person who had promised the appearance of said Defendant. The question was whether the witness was too interested to testify because the Sheriff might have recourse against the witness. Held: the Sheriff would not have such recourse, so the witness could testify.


Elwell v. Pierson (from Essex) (1763)


Issue as to whether an heir took an estate tail or fee simple. Quincy presents the lengthy oral arguments of Thacher for the tail and Gridley and Auchmuty for the fee simple. Both sides cited extensively to English authorities and Colony statutes. Court adjourned and Quincy records decision from the August term. Held: although the will technically created an entail, it also created an affirmative maintenance duty that resulted in a fee simple, instead.


Russell v. Oakes (from Middlesex) (1763)


Issue of whether a Plaintiff could collect on a note endorsed to him when payment on the note had already been made. Arguments of counsel: Trowbridge for Defendant, Kent for Plaintiff. Judgment rendered in August Term for Defendant. English authorities cited. Chief Justice in dissent because of effect on “Trade.”

[Note: This case is out of Chronological order]

August Term (1762)

I Georgii Ter. In Sup. Cur.


Paxton’s Case of the Writ of Assistance [more correctly, “Assistants”] (1761)


Quincy presents the facts, procedural history and extensive oral arguments. Paxton applied to the Superior court for a Writ of Assistants, as by Act of Parliament to be granted to him. Court requested the opinion of the Bar as to whether it has the power to grant the writ. Otis and Thacher against and Gridley and Auchmuty for. Justices ruled unanimously that it could be granted. Case had constitutional implications because the writs were not enacted by Parliament until after the settlement of the colony. Extensive citation to English authorities and to Province laws.

February Term (1763)

III Georgii Ter. In Sup. Cur.


Ruddock v. Gordon (1763)


Plaintiff Collecter of Taxes for City of Boston brought a writ of trespass upon a general indebitatus assumpsit. Court ruled that the collector’s authority could not be heard on the merits by a plea in abatement, but at a trial on the merits. Nevertheless, at the request of both parties, the Court held that the Plaintiff had no power to bring a civil action, but should proceed by distress. No authorities cited.


Gardiner v. Purrington (1763)


Action of Trover in Inferior Court of Suffolk Co. for timber removed from land in Cumberland County. Quincy presents oral arguments by Auchmuty, Gridley and Kent. Held that introduction of title to land in another county is only permissible in a trover action when the case cannot be tried in the county wherein the land is located, unless there exists some other necessary circumstance. English authorities cited in argument.


Rogers v. Kenwrick (from Barnstable) (1763)


Issue of whether the arbitrators of a land boundary dispute have the power to bind the parties, or are they determining a freehold which is beyond their power? Oral arguments by Otis for the Plaintiff and Paine for Defendant. English authorities cited. Judgment, by a sharply divided court, that the arbitrator did not exceed his power.


Gridley v. Balston et al. (1763)


Plaintiff sued the executors of his agent in England for the manner in which they conducted his business. Issue was whether executors should answer as such, holding the estate liable, or whether only decedent was liable in tort for breach of trust. Quincy presents the arguments and English authorities cited. Court held that it was a tort action which would not lie against a dead man.


Brown v. Culnan (from Middlesex) (1763)


Quincy records only the text of a special verdict and the judgment. Issue: whether a town may collect money from the defendant for the support of his abandoned wife and children. The Defendant was absent and had not requested support. Held: yes.


Dunten v. Richards (from Cambridge) (1763)


Issue: whether a guardian of a minor had the right to release minor’s master from a contract to pay him as an Apprentice where the minor was unable to perform the duties. English authorities cited. Held: the guardian had no such authority, and the master had to pay.

August Term (1763)

III Georgii Ter. In Sup. Cur.


Baker v. Mattocks (1763)


A very important case. Issue is whether estates in tail are partible under province law. Oral arguments of Fitch, Gridley, Otis and Thacher, and comments of Justices. Province statute on point seemed to refer only to fee simple estates. English authorities cited. Court ruled 3 to 2 against partibility. Quincy records opinion of each justice.


Scollay v. Dunn (1763)


Respondent brought a writ of libel against Petitioner in Admiralty and a writ of prohibition issued, blocking the Admiralty proceeding. Issue was whether Admiralty had proper Jurisdiction over a ransom bill to a French privateer, secured by a ship’s Mate as hostage. Quincy provides the lengthy oral arguments of Auchmuty and Gridley for jurisdiction, and Otis and Thacher against it. Court held that the writ of prohibition would stand, “the Affair of Ransom” was not “a Contract upon the High Seas.” Auchmuty and Gridley claimed an appeal to the King and Council under the Charter. Hutchinson was in favour of the appeal, but Cushing, Oliver and Lynde were against. Extensive citation to English authorities and the provisions of the Charter. (See Dunn v. Scollay, Quincy’s Reports, 187, supra.)


Angier v. Jackson (1763)


Issue of whether a new trial could be given where the jury verdict was “contrary to the Mind of the Court.” Trowbridge for new trial, Auchmuty against. English authorities cited, the prior case of Fuller & Clark at Cambridge. Held: new trial denied, as there was “evidence on both sides” and Court below was “not clear” that the verdict was “against Law and Evidence.”


Poor v. Doble (1763)


Quincy presents facts, issue and holding for writ of abatement. Held: an action on the case, against Doble, for rescue of a party arrested by a bailiff, can only be brought in the county where it occurred and not where the rescue conspiracy was formed. No authorities cited. Thacher for abatement, Gridley against.


Lovell v. Doble (1763)


In the same cause as Case 32. Quincy records oral arguments concerning technical exceptions to the form of pleadings. Fitch, Thacher and Otis for Plaintiff, Auchmuty and Gridley for Defendant. English authorities cited. The exceptions against the Plaintiff’s Declaration were rejected, but Defendant Doble still prevailed for the jurisdiction reason given in Case 32.


Dom. Rex v. Doaks (1763)


Defendant was indicted for keeping a bawdy house, found guilty and fined. Appealed introduction of evidence of her behavior before becoming mistress of house and concerning her character. Evidence ruled inadmissible. Directed verdict in her favor. No authorities cited.


Dom. Rex v. Gay (1763)


Defendant was indicted for resisting arrest. Issue is whether warrant for arrest was proper, and Defendant was therefore liable for resisting. Held: warrant, which was illegal on its face, was not admitted as evidence to demonstrate the Sheriff’s right to make the arrest, and Defendant was acquitted.

August Term (1764)

IV Georgii Ter. In Sup. Cur.


Allison v. Cockran (1764)


Action was one of Trover for a negro. In a footnote Quincy questions whether such an action can lie in Trover, an action to recover goods. Quincy offers a brief account of the case. Issue is whether the administrators of an estate could be called as witnesses. Court held that they could only if the estate was insolvent. Gridley and Otis for Defendant and Auchmuty for Plaintiff.


Hanlon v. Thayer (1764)


Plaintiff brought an action of trover against Sheriff Thayer because he attached her personal clothing acquired by her prior to marriage to pay her husband’s debts. Oral arguments of Otis and Auchmuty for Plaintiff, and Chardon and Gridley for the Defendant. English authority cited. Chief Justice admonished lawyers for insufficient use of authorities. Held: by a 2 to 1 split court, clothes bought before the marriage could be attached, except for “necessary” clothes. Judgement for the Sheriff. Quincy adds in a footnote another English authority, Coke’s First Institutes, that could have been cited. Samuel Quincy adds others.


Dom. Rex v. Pourkdorff (1764)


Defendant was indicted for stealing. Issue of whether a woman convicted of stealing could be admitted as a witness on his behalf. Oral arguments of Kent for Defendant and Attorney General for the Crown. English authorities cited. Witness was admitted because her crime did not “invalidate the Credit” of her oath. She exonerated Defendant by admitting that she committed the theft.


Ballard v. Maclean (1764)


Issue of whether a mistake in town of residence of party in a writ should cause abatement, even though it would cost the Plaintiff a right to appeal. Dana argued for the writ with Thacher against it. English authorities cited. Writ was abated, Chief Justice dissenting.


Bromfield v. Little (1764)


Issue of whether the custom of local merchants would allow interest on a debt “after a year,” as the custom was “at Home,” i.e., England. Arguments and opinions refer to distinction between custom “at home,” in England, and custom here. No authorities cited. Held: English custom did not necessarily bind Colonial Courts. This custom, “however reasonable,” had not yet been adopted “here.” So instructed, jury disallowed the interest.


Quincy notes a change in schedule of the court to meet on a different schedule and in the months of August and March.


March Term (1765)

V Georgii Ter. In Sup. Cur.


Chief Justice’s Charge to the Grand Jury (1765) (“Charge Number 1”)


Quincy reports Chief Justice Hutchinson’s charge to the Grand Jury. He reminds them that they have the discretionary power to present anything, and asks them to pay attention to various matters, including recent riots in Boston.


Whitney v. Whitney (1765)


Action of assumpsit on a note. Issue of whether the note could be offered in evidence to the jury. Adams objected to the admission of the note on technical grounds of omission of a term from the note, i.e., payable to Plaintiff or “order,” Auchmuty argued for the note. Court held note should be admitted because the suit was by the payee, not a third party, cited to Russell v. Oakes, Case 21, supra, and English authorities.


Banister v. Henderson (1765)


A “Case of great Importance.” The first issue was whether Banister’s parents were considered legally married, so that he could claim under the will of his grandfather. Is a marriage certificate required or is universal report sufficient? Gridley and Dana for Banister, Otis and Auchmuty against. The second, and more important, issue concerned whether decedent devised an estate tail. Quincy records the lengthy oral arguments and exchanges with the justices. Extensive citation to English authorities and to Elwell v. Pierson, Case 20, and Dudley v. Dudley, Case 9, supra. Oral arguments were so lengthy that the court requested brief statements of the case from each party. Quincy footnotes his own discussion of Counsels’ use of authorities. Held: by a 3 to 2 split court, that the testators were legally married, but the will did not establish an entail.


Rochester Proprietors v. Hammond (1765)


Defendant Hammond brought a writ in abatement to a plea of ejectment from common land due to uncertainty of description of the land in the plea. Robert Treat Paine argued for the abatement, James Otis Jr. argued against. Held: unanimously abated. Chief Justice, “’Tis impossible for the sheriff to lay it out at all.”


Dom. Rex v. Mangent (1765)


Captioned “Life & Death.” Indictment was for murder of a bastard child. Issue of whether a certificate from a Minister of another government was admissible as evidence of marriage, where it had no authentication by a magistrate. Real issue is that birth of a stillborn child to an unmarried mother without witnesses is presumptively murder under provincial statute, thus marriage of mother is all-important. Extensive citations to English authorities by the defendant, none by King’s Counsel. Held: the certificate was admissible.


Draper v. Bicknell (from Taunton) (1765)


Defendant Bicknell refused to appear when summoned for military service on the grounds that he was on the secondary, rather than the primary militia list. Held: he should have shown up and then argued for exemption. He must pay a £20 penalty. Otis and Gridley argued for Plaintiff, Trowbridge for Defendant. No authorities cited.


August Term (1765)

V Geo. III


August 27th, 1765 (1765)

Quincy recounts the destruction of Hutchinson’s home by the Boston mob, and Hutchinson’s address to the court on the following day. Due to the disturbances the court adjourned until October 15th.


Chief Justice Hutchinson’s address to the Grand Jury (1765) (“Charge Number 2”)


Pateshall v. Apthorp & Wheelwright (1765)


Issue: Pateshall accepted a note from Wheelwright, a partner of a Company with Apthorp, to settle the Company’s account. The note was not paid. Did acceptance of the note discharge Apthorp and the Company? Held: in a 2 to 1 decision, no. Appeal granted to Privy Council.

30 (cont.)

Dunn v. Scollay (1765)


In this brief report of the case, Quincy records only the authorities cited by each side. This is the same case that involved the writ of prohibition to the Vice-Admiralty court. See Scollay v. Dunn, Case 30, supra.


Norwood v. Fairservice (1765)


Quincy presents the extensive oral arguments of Fitch for Plaintiff and Gridley for Defendant, concerning alleged alteration of a deed. Issue: was it for the court or jury to decide? Held, in a split opinion, issue was for jury to decide. Justice Lynde recalled a similar Lanson’s case in Middlesex.


Pond v. Medway (1765)


Quincy reports only a ruling: on certiorari no evidence will be admitted except what was in record from the Sessions.


Watts v. Hasey (1765)


By statute, judgement on a mortgage was conditional for two months. Held: the two months runs from entry of judgement in the Superior Court, not from the default judgement below. If the court waited the two months from the Superior Court judgement, the Stamp Act would come into effect, and execution would not be had at all.


Tyler v. Richards, Administrator (1765)


Plaintiff brought an action indebitatus assumpsit (the general contract remedy) for boarding and schooling of intestate’s son. Auchmuty for Defendant and Adams and S. Quincy for Plaintiff. Issue: whether quantum meruit was not the correct form of action. No authorities cited. Held: the action should have been quantum meruit. In a footnote, Quincy refers to Pynchon v. Brewster, Case 51, infra.


At the close of the Term the Chief Justice commended the Bar for the harmony between them. That was to be contrasted with the disturbances in most parts of the province. Quincy notes that James Otis Jr. was absent for most of the Term at the Stamp Act Congress in New York (1765).



Quincy records the Stamp Act crisis and the virtual closure of the courts due to a want of Stamp-Papers. He reproduces the petition of the Town of Boston to the Governour-in-Council. The petition presented by Adams, Otis and Gridley expounded many of the constitutional arguments of the colonists and cited extensively to English authorities.



Memorial of the Town of Boston, Address to the Governor in Council, his Excellency Francis Bernard, concerning the Stamp Act. Arguments by John Adams, James Otis Jr., and Jeremy Gridley. Many English and Civilian Authorities cited.


March Term (1766)



Charge to the Grand Jury (“Charge Number 4”). Quincy records that the Chief Justice, who was the Lieutenant Governour of the Province, was not present through the whole of the Term. Justice Lynde offered the instructions to the Grand Jury. “But what and how the business of the Term was transacted, together with the political finesse of the game that was played, must be left to be reported by another hand, at a future day.” The editor refers to Adams’s account of the session in his Diary.


August Term (1766)



Chief Justice’s Charge to the Grand Jury (“Charge Number 5”). Hutchinson included lengthy instructions concerning commonly occurring crimes.



Pynchon, Executor v. Brewster (1766)


Action of indebitatus assumpsit (the general contract action) for doctor’s bills. Adams for Defendant argued that the action lay in quantum meruit, relying on Richards v. Tyler, Case 50, supra. Held: indebitatus assumpsit by “custom” lay in such cases, even though there was no agreed price, apparently in contradiction to Tyler v. Richards, Case 50, supra. Quincy includes the reasoning of the Chief Justice in holding for Plaintiff. Samuel Quincy notes that this case was overruled in Le Testue & Glover, August Term, 1770, which followed Tyler v. Richards, Case 50, supra.


Box et al. v. Welch et al. (1766)


Action of indebitatus assumpsit for an account. The issue was whether the Plaintiff’s account book could go into evidence against two Defendants, in absence of proof of joint liability. Auchmuty objected for the Defendants. Otis for the Plaintiff. No authorities cited. Justices voted 4 to 1 over the Chief Justice’s dissent to allow the evidence as to both.


Apthorp et al. v. Eyres (1766)


Quincy records the oral arguments for use of a deposition as a means to prove to the court the death of one of the parties to the action. No authorities cited, but extensive reference to procedures “at home” in contrast with in the province. Fitch and Gridley argued to admit the deposition, with Auchmuty against. Quincy records the opinion of each justice. Held: by a split court, the deposition was admissable.

March Term (1767)



Chief Justice’s Charge to the Grand Jury (1767) (“Charge Number 5”)



Bromfield v. Lovejoy (1767)


Auchmuty pleaded abatement of a writ for incorrectly identifying Defendant as a ‘Yeoman.’ Defendant held a Captain’s Commission. Otis argued for the writ. English authorities cited. Writ abated.


Carpenter v. Fairservice (1767)


Action of assumpsit on a note payable upon demand. The issue was whether key words were crossed out before or after the note was signed by the Defendant. Auchmuty objected to introduction of the note as evidence and S. Quincy, Quincy’s brother, argued in favor. In footnote Quincy refers to Norwood v. Fairservice, Case 47, supra. No other authorities cited. Held: by an evenly divided court, the note should not go to the jury.

August Term (1767)



Chief Justice’s Charge to the Grand Jury (1767) (“Charge Number 6”)



Malcolm v. Gleason (1767)


Held: once a negotiable order is accepted, notice is not required to make the acceptor liable to a subsquent endorsee. No authorities cited.


Gibbs v. Gibbs (1767)


Held: proper construction of a will should be raised by special verdict, not by trying to bar the will in evidence. No authorities cited.


Hall v. Miller (1767)


Issue: whether “to pay on Demand” was a good allegation when the original agreement provided for a period of credit, which had since expired. Held: yes.


Noble v. Smith (1767)


S. Quincy and Adams for Plaintiff, Otis and Auchmuty for Defendant. Quincy notes that the oral arguments were too lengthy to reproduce but included a list of English authorities cited. Issue: whether failure of full consideration for a promissory note could be entered into evidence by the Defendant to limit damages. Held: 3 to 2, no.


Curtis v. Nightingale (1767)


Issue: when Defendant conveyed the same land to two purchasers, was indebitatus assumpsit for money and had received the right action? Held: no. It should be a special action on the case for fraud. Held for Defendant.

March Term (1768)



Chief Justice’s Charge to the Grand Jury (1768) (“Charge Number 7”)


Contains an interesting discussion of independence of the settlers under the old charter, and their adoption of the “Judicial Laws of Moses.” The speech was quite political, exhorting the Jury to take cognizance of the many instances of libel occurring of late. Quincy notes that they found no bill for libel.


Silvester Richmond, Esq., Appellant v. Benja: & Edward Davis, Appellees (1768)


This comes close to the form of a modern law report, at least as to Trowbridge’s dissent. Quincy presents the findings of a special jury verdict and the lengthy written opinion of Justice Trowbridge, dissenting. He also includes the brief ruling of the majority. Issue: whether sheriff’s failure to levy execution was excusable in absence of instructions from the creditor. Held: no. The sheriff was liable. Appeal claimed to King in Council. Trowbridge’s dissent cites to English authorities and to province laws. Quincy also includes further authorities on point in his footnotes.


Apthorp v. Shepard (1768)


Brief summary of arguments and numerous English authorities cited. The court noted that it relied on the authorities supplied by Justice Trowbridge rather than those produced by the oral arguments. Issue: whether an action of indebitatus assumpsit could lie on an open account, where the account had been adjusted and a note given for the balance. Held: no. The correct action was insimul computassent based on the adjustment.

August Term (1768)



Chief Justice’s charge to the Grand Jury (1768) (“Charge Number 8”)



Quincy notes that his absence from the court for the term prevented his taking any minutes of arguments at the Bar.


March Term (1769)



Chief Justice’s charge to the Grand Jury (1769) (“Charge Number 9”)


August Term (1769)


Memoranda and Charge to the Grand Jury by Justice Lynde (1769)

316 (“Charge Number 10”)

Quincy notes that although Hutchinson was then the Commander-in-Chief of the Province, he sat and acted at the opening of the court because it had no quorum without the Chief Justice. The court speedily adjourned until November.

Quincy also notes that some have questioned the validity of all proceedings conducted that term, and whether they might be reversible on writ of error, because the Chief Justice position was ipso facto vacated by Hutchinson’s becoming Governour.

Quincy records that he argued to the jury for the first time at the previous sitting of the court in Charlestown, even though he was not yet admitted to the Bar (probably for political reasons).

October Term (1771)

Middlesex Ss.


[Samuel Quincy notes that the following Middlesex cases appear to have been reported in another’s handwriting, and there are clear differences in literary style. Josiah Quincy himself appeared in some of these cases, and he may have hired someone else to take notes.]


Symes & wife, original Plaintiffs, v. Hill, original Defendant (1771)


This was another case growing from the Wheelwright failure. See Case 46, supra. Summary of facts and oral arguments of Adams for Plaintiffs and Fitch for Defendant. Jury instructions of Court and opinion of each justice. English authorities and province laws cited. Issue: Defendant mortgaged his land but did not record mortgage until after Plaintiff attached the land. Held: the attachment was good.


The King v. John Johnson Grant (1771)


A brief note observing that the constant practice of the court is to remove prisoners from the gaols of one county to another by use of parol orders. Other provincial case notes by Reporter. It was also noted that a “Habeas Corpus ad Testificandum” was awarded for Abram Littlehead at the “Motion of the Attorney General.”


Parker v. Willard (1771)


Action on a Promissory note. Plaintiff’s declarations presented by Sewall and Rogers, and Defendant’s exceptions in abatement by Josiah Quincy himself! Held: the declaration did not allege specific damages, and thus showed no cause of action. No authorities cited.


Hall v. Richardson (1771)


Held: where constable executed Defendant’s judgement outside constable’s authority, but Plaintiff paid anyway, it was too late for Plaintiff to recover the money. No authorities cited.


Memorandum (1771)


Quincy notes the resignation of Chief Justice Lynde and Justice John Cushing. Peter Oliver was made Chief Justice, Nathaniel Ropes and William Cushing were made Justices, taking their seats in Suffolk, February Term, 1772.

April Term (1772)

Middlesex Ss.


Honourable Peter Oliver, Esq., Chief Justice, Edmund Trowbridge; Foster Hutchinson; Nathaniel Ropes; William Cushing } Esqrs., Justices

[Again, these cases are reported by someone other than Josiah Quincy, and he appears in some cases.]


Reed’s Case (1772)


Held: a man serving on the Grand Jury for a year is not liable to perform petit jury duty. No authorities cited.


Flagg v. Hobart (1772)


An action for words. Dana and Sewall for Plaintiff, Josiah Quincy himself for Defendant. Held: alleged justification for admitted remarks, to prevent harm to others, and denial of other remarks should be tried separately. No authorities cited.


Whitney v. Haven (1772)


Issue: where Plaintiff brings trespass for an arrest pursuant to a deficient warrant, could attested copy of warrant issued by judge be introduced if allegedly different from one used in arrest? Held: yes, and Plaintiff can give his own evidence that the copy was different. No authorities cited.


Tuttle v. Wilmington (1772)


Issue: whether a note endorsed to Plaintiff could be collected if it had already been paid. Court ruled against the Plaintiff, citing Russell v. Oakes, Case 48, supra.


Fowle v. Wyman (1772)


Brief summary of oral arguments in trespass action. Ruled that the declaration did not support the action because it failed to show evidence of trespass. No authorities cited.


Thwing v. Dennie (1772)


Brief account of incident in courtroom. Party held in contempt for destroying opponent’s paperwork “in a most savage Manner.” No authorities cited.


Little v. Holdin (1772)


Held: where appellant fails to appear, appellee can have judgment for the costs of the appeal, but only by filing a complaint pursuant to Province Statute, 13 William 3d, chap. 5 (1701).


Dewing v. Train (1772)


Brief factual summary and ruling. An action of assumpsit will not lie for recovery of money on a note which was paid after the due date. Samuel Quincy includes a lengthy note explaining the continuance of this action from term to term, due to the effects of the Revolution. Final judgment in 1777. This is strong evidence of the continuation of the court, despite the Revolution.

April Term (1772)

Worcester Ss.



Hooton v. Grout (1772)


Almost identical issue as in Symes v. Hill, Case 63, supra. Quincy sets out only the question presented and a lengthy written opinion of the court, which Samuel Quincy tells us was by Justice Trowbridge. Issue: whether lands and tenements mortgaged may be taken in satisfaction of mortgagee’s other debts. The style of the opinion is close to modern forms, addressing a series of arguments and the authorities cited to support each. The parties relied extensively on Province Statutes and English authorities. Held: mortgaged lands may be taken in execution but not pursuant to an attachment made after an assignment was received by the Registry of Deeds, although not recorded until later.

NOTE: Chronological break at this point.


Anonymous (1770)


Quincy offers a hypothetical case, similar to Fowle v. Richardson (1770), in which he was counsel, involving parties A, B, and C. However the opinion appears to be from the actual case. See annotations to Case No. 76. Issue: If A bargains and sells to B, who then enters and improves the land, and A subsequently sells to C who records the deed first, who wins? Answer, B owns the land, not C. Thus, B’s land is also not liable to attachment by A’s creditors. Quincy presents the lengthy opinion which relies heavily on Province Statutes and English authorities.

May 20th, A.D. 1771

Court of General Sessions of the Peace


The Petition of the Jurors in the Trial of Captain Preston and the

382 British Soldiers (1771)

The Justices of the Superior Court recommended to the Court of General Sessions that a reasonable allowance be paid to the jurors in these trials due to the length of the sequestrations (15 days total). Prompted by this, the jurors petitioned for the allowance. The Sessions Court doubted its power to grant the allowance, and requested four gentlemen of the Bar to argue the issue. Held: no allowance, because the Sessions Court did not have the necessary authority under provincial law. Quincy notes his approval that the General Sessions Court decided a point of law against an extension of its own power, especially where it would affect the purse of the subjects. He regrets however that the Superior Court had been inclined in the opposite direction. Citations are only to provincial law. Quincy published this report in the Boston Gazette, on May 20, 1771.

December, A.D. 1763

Curia Admiral, Coriam Honor

Chambers Russell, Armigero


Bishop v. Brig Freemason (1763)


This is an incomplete and early report by Quincy. Action of libel by Captain Bishop, as a Customs officer, against Freemason for violation of the Navigation Act. Quincy presents the extensive oral arguments. Gridley and Thacher for claimants. Extensive citation to English authorities. The issue was whether the Act was violated if the cargo had not actually been landed or “bulk broken.” The report breaks off before the holding, but other sources indicated that the vessel and cargo were forfeit, nevertheless. See discussion at Case 78, Note 6.