In August 1770, with Adams and Jonathan Sewall as his counsel, John Whiting had prevailed in an action of trespass which he had brought against his neighbor Ichabod Ware for a tract of land near Smoking Hill in Wrentham. Referees, under a rule of the Superior Court directing them to fix a boundary between the litigants, had reported that no line could be drawn, because Ware had no claim to any portion of the lands which Whiting claimed.1 Whiting traced his title to Ebenezer Hill, who had died in 1732 owning substantial real estate in Wrentham. In his lifetime Hill had conveyed fifty acres at Smoking Hill to his brother Jabez. William Bollan and Henry Laughton, grantees of Jabez, had conveyed the same premises to Eliphalet Whiting, John's father. Ware's unsuccessful claim had been based on a conveyance of several parcels in the same vicinity made in 1734 by Ebenezer's administrator, Jonathan Whitney, to one Joshua Morse. The claim had failed, apparently because Ware could produce no evidence of the passage of title to him from Morse.2

Perhaps as a result of this decision, Abiel Hill, posthumous daughter 261and only heir of Ebenezer, brought an action against Whiting, claiming possession of the tract formerly in suit, which she alleged to be 99 ½ acres in extent. Her declaration purported to be in “ejectment.”3 In England, this form of action, originally the remedy of a lessee turned out of the leased premises, had, through an elaborate fiction, become the usual method of trying title to land. The pleadings, which echoed the origin of the action, told a tale in which John Doe, a fictitious lessee of the actual plaintiff purported to sue Richard Roe, an equally nonexistent ejector, in whose name the real party in interest was called upon to defend. If the actual plaintiff succeeded in his suit, he was awarded possession of the land. Since the action was in form only for a single trespass, it could have been brought repeatedly by an unsuccessful plaintiff for later trespasses, but the courts tended to discourage such suits when the title in question was the same. This drawback was rendered of such little effect that by the 18th century ejectment had largely replaced the numerous ancient real actions, with their cumbersome process, technical rules, and narrow scope.4

While the fictional form of ejectment was not unknown in Massachusetts, it seems to have been little used, apparently because of the lack of conclusiveness and a feeling that the adventures of Doe and Roe led to unnecessarily complex and wordy pleading. Instead, “ejectment” was a generic term for a form of action which could embrace any of the ancient real actions and attendant rules that a given case demanded, but which embraced them within a simple form of writ and process that avoided medieval mysteries and led to a trial like that in any other civil suit.5 Abiel's 262suit shows that there were situations in which the Massachusetts form was an improvement upon the English.

Her declaration was a form apparently unique to Massachusetts which had some attributes of the ancient assize of mort d'ancestor, but was in effect a variety of writ of entry.6 Even in England one of the ancient forms would have been necessary in her case, because ejectment depended upon a right of entry in the actual plaintiff. Abiel's right had accrued in 1732, at the death of her father, or at best in 1733, when she was born. Under the applicable statute of limitations, an entry upon lands had to be made within twenty years after the right accrued, or if it had expired during the minority of the claimant, within ten years after his majority. Abiel's right of entry was thus lost, and with it her right to proceed in ejectment as that action was known in England.7

At the trial in the July 1771 Suffolk Inferior Court, with Adams once again of counsel, Whiting obtained judgment on a demurrer to his plea of not guilty. On appeal to the Superior Court in February 1772 the demurrer was waived and the case went to the jury, which brought in a special verdict. The declaration had alleged that Abiel's father died seised on 30 October 1732. The jury found that the actual date of his death was 21 October 1732; that if the court should hold that this discrepancy was not a bar to the action, then Abiel could recover 21 acres and 31 rods of 263the land sued for (apparently a parcel which had not passed under the grant from Ebenezer to Jabez); that otherwise she took nothing.8

At the August 1772 session of the court Adams for Whiting, and Josiah Quincy Jr. for Abiel, argued the question presented. Adams' minutes (Document I) set out authorities for his position that the date of Ebenezer's death was a material allegation. Treating the action as a writ of right, he apparently argued that the time in which the ancestor was seised must always be set out, and that the exact date was material because of the statutory periods of limitation for the bringing of actions for the recovery of lands. At the end of these notes, which were probably before him as he argued, he took down the cases cited in opposition by Quincy and made a notation of the court's unanimous opinion that Abiel could recover in accordance with the verdict.9 The files of the case contain the actual opinion of Judge Trowbridge on this and another point apparently raised by Adams, the validity of a verdict for less land than was sued for.10 This unusual item appears as Document II.

The court's decision seems sound. Even Adams' authority indicates that only the fact of seisin, not the precise date, is material. As for the statute of limitations, although in real actions entry or seisin within the required time had to be established by the plaintiff, the discrepancy in dates was not material here.11

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.2 “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 Eire3 of Nottingham.”

Fitz. N.N.B. page. 69.4 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.5

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.6 Bac. Abr. Vol. 3. 501.7

Holbeck vs. Bennett, 2. Lev. 11. 2. Saund. 317.8

Blackwell vs. Eales, 5. Mod. 286.9

Rex vs. Bishop of Chester, Skin. 660.10

Lane vs. Alexander, Cr. Ja. 202.11

Cro. Car. 360.12

2. Comyns's Rep. 12. 13.13

3. Lev. 193. Where Day is made Parcell of the Issue it is ill.14 Brooke Trav. pl. 40.15

2. Mod. 145. Brown vs. Johnson.16 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.

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 329.2 I think the Plaintiff Ought to have Judgment for the 21 Acres and 31 Rods, and Costs.