In the spring of 1770 the schooner Hitty, John Burnam, master, sailed from her home port of Marblehead to Philadelphia. As she lay at the wharf in the latter port, Burnam spent a night ashore. Next morning, a small locked trunk in which he kept gold coin was missing from its place inside a larger chest in his cabin. Two or three days later the empty trunk was found floating in the harbor with the bottom knocked out of it. The Captain's suspicions lighted upon James Mugford, a member of the crew. When the Hitty was about three days out of Philadelphia, homeward-bound, he undertook an inquiry to verify those suspicions. In the course of his investigations Burnam found a sum of money in gold dollars and johannes, amounting to about £20, part wrapped in a handkerchief and part in a purse, both of which were in a pair of Mugford's breeches hidden in some straw in the latter's quarters. After questioning the rest of the crew, Burnam confronted Mugford with his find and accused him of the theft. Mugford denied his guilt and insisted that the money was his, saying that the Captain had most likely come back aboard and taken the money himself. Angry words and threats followed between the two, but the net result was that Burnam kept the money.1

Mugford brought suit against Burnam within a few days after their return to Marblehead. His declaration in trespass alleged a taking “at said Marblehead,” a fictitious allegation intended to overcome any objection to the venue based on the fact that the incident had not occurred within Essex County.2 At the July 1770 term of the Inferior Court at Salem, after a plea of the general issue, the jury found a verdict for Mugford of £22 damages and costs.3

On the appeal which followed, Adams joined John Lowell as counsel for Captain Burnam. Adams' minutes of testimony at the trial in the Superior Court in June 1771 offer some interesting views of life aboard ship and indicate what a slender thread of circumstantial evidence there was to justify Burnam's taking. These witnesses and the depositions on file in the case were agreed that Mugford had had money when he got to Philadelphia, and that Burnam had taken money from Mugford's possession. Burnam could offer no direct evidence that the money was his, or that Mugford had come by it wrongfully. Thus, Mugford's title, as well as his possession, was made out. In this state of the case it is hardly surprising that the jury returned a verdict affirming the former judgment for Mugford.4

Jno. Melzond. Was on board the Vessell with Captn. Burnam and Mr. Mugford. Burnam took an Hankercheif and a Purse and 1/2 Johannes 2 in it, and some small Money. B. askd Mugford is that your Money? Yes. M. said Do you intend to keep it. M. claimed it as his Money. Said it was his Money and asked Captain Burnam if he want going to let him have it. B. said No. Cant say if the Handkerchief was his. 1/2 Jo. in the Purse. B. did not claim any Thing but the Money. I had seen M. have such a Purse and wear such a Pair of Breeches. He had a Chest on board. Dont know how M. came by the Money.3 M. said he brought the Money from Spain. He had a Watch which he used to keep in the Coopers Chest. C.B. was out that 151Night. Fortnight or 3 Weeks before. I went and made the Captains Cabbin. Dunlop the officer, and Mugford playd a Game of Cards. I saw the Cabbin open and his Trunk next Morning. B had Money in that Trunk. Mugford had Money, with him when he went to Phyladelphia. He lent 21/2 Jos. and said his father gave em to him to buy Pork. M. a foremast Hand. B. when he found his Trunk was broke he said he had lost about £4500. . The Trunk was found between the Wharfe and ship. The Trunk was generally lockd the Chest Unlock'd. 2 Hds. Molasses rolled off the Wharf that Night.

James Mugford—father of Plaintiff. The Voyage before this, he went to Spain, and he carried with him Fish &c. which sold for £60 L.M. He had a Months pay of C.B. and the neat Proceeds of an Hogshead of Molosses, which might amount to £70 L.M. He told me he brought Money from Spain. He brought from Phyladelphia 5 Barrels flour and 1000 Wt. Bread. I gave him no Johannes to buy Pork, or anything, before he sail'd.

Lowell.

George Wilfords Deposition vid.4

Grist. M. told me that C. Mugford5 accused him with stealing Money, which he was innocent of, as the Child in the Womb. He said He carried 10 Jos. which his father gave him, to buy Pork. He did not buy it because the Pork was so dear.

Mr. Grist. M. told me he was clear, &c.