In order to prevent as much as may be any damage to any of the parties in the said suits or to the Officers who laid the attachments the defendants friends propose that you cause the effects attached to be appraised you chusing the appraisers for the defendant and that his friends will shew you other effects of his to the full amount of the Value appraized less perishable than those now attached on which you may lay the attachment to lie forthcoming for the judgment which shall be obtained in the said suits.

They request the favour of you that the appraisement may be as soon as possible and that Mr. John Fleeming the defendant's Attorney may have notice to attend by himself or Agent during the appraisement. I beg an answer to these proposals in writing and am in behalf of the defendant and his friends Sir Your most obedient Servant,

I yesterday saw Mr. Hancock who consents to have the Goods of Mr. Mein which were attached appraiz'd. I have therefore appointed Mr. Leverett and Mr. Edwards Booksellers to join with any one appointed by Mr. Hancock to execute that business. Mr. Hancock promised to nominate his Man this Morning and then Mr. Cudworth who made the attachment will attend them and give you notice to attend also if you please. The late disorders of the Town have a little delayed this affair which Mr. Mein's friends will excuse. Yours,

It is with much concern for my friend Mr. Mein that I learn his Bookstore is still shut up notwithstanding the fair proposal I had the honor to make you of the 7th. of last Month, where the fault is I know not. It is not at present convenient for me to go to Town to enquire, but I have too good an opinion of you as a Gentleman and an Officer to imagine it lies at your door. I shall be much oblig'd to you for accelerating the business. I am ready to comply with my engagement. In the meantime give me leave briefly to state my friends case in confidence for the Truth of which I appeal to you. A Bookseller and printer for daring to oppose and attempting to expose a combination of several Merchants and others in the Town of Boston is hurt in his trade by many underhand practices. An attempt is made upon his life. He is driven off. Letters of procuration are obtained from his Creditors at home to a Champion of the combination. His Stock in Trade and all tools of trade are attached in his absence. His Stock is shut up from Sale. Undoubted security is offered that the Stock or the value of it should be forthcoming to satisfy the judgments that shall be obtained. That offer is rejected. A second offer is made to shew other effects of the debtors less perishable. That proposal too equitable to be flatly refused is evaded by procrastination and the Debtor thus treated in his absence is to be liable for the prime cost, accruing interest and charges of Goods which he is utterly debarr'd from selling. Is not this what was understood of Old by being compelled to make Bricks without straw. I have the honor to be respectfully Sir Your most obedient Servant,

Your obliging Letter relative to Mr. Meins affair would have been sooner replied to had I not waited to have it in my power to have given a more pleasing Account than I am yet able to do. Various reasons may be assigned for the delays in the Appraisers. The constant attention which I have been oblig'd for Six Weeks past to pay to the Courts of Justice may serve as some part of an apology for me if any was necessary but when I assure you that nothing has been left undone by me which could be legally done in order to get Mr. Mein's Shop opened and in a course of business your goodness I am sure will lead you to excuse every thing on my part. You have been doubtless informed by Mr. Fleeming that after a considerable delay the three appraisers were got together and Mr. Cudworth (whose business it 218was) appointed his Son to attend de Die in Diem to make out a compleat Catalogue and Inventory of the whole. Mr. Reid also attended. The appraisers finding it would take a long time to make out a Compleat Catalogue thought it quite unnecessary for them to be there during the Inventory being taken but agreed as they informed me that as soon as it was done they would set down the price against the several Articles. Cudworth promised to furnish them with a Copy for that purpose which I am told he delivered to Mr. Fleeming. I have since often spoke to the Appraisers but have always found a backwardness, whether owing to an influence, Business of their own or a natural disinclination I am not to say, but so it is. Mr. Leverett (one of them) has been laid up some time with the Gout. I see him this day and he hopes to be able to attend the affair the beginning of the Week when I shall push the matter having obtained a fresh promise from the other two Gentlemen to wait upon him at his own house for that purpose. Whether it won't be still delayed 'till Mr. Hancock can hear from England I know not. His constant business at Cambridge with my unwillingness to be further importunate with a Gentleman of his great superiority has really kept me from applying to him on the Subject and if I know your mind imagine you would not desire me to supplicate the favour. What I can with honor to myself and friendship to Mr. Mein get accomplished will certainly be done. Being with all possible respect Sir Your most obedient Servant,

The Jury found a Verdict for the Sum sued for. Kent moved that the Verdict should be rejected. I deny'd the Power of the Court to reject it, and said if he would move for a new Tryal, that would not be without a Precedent in the Superiour Court tho it would in an inferiour Court.2

13 Ed. 1. c. 30. Barrington Obs. on Stat. 103. “Item ordinatum est quod Justitiarii ad Assisas capiendas assignati, non compellant Juratores dicere precise, si sit disseisina vel non; dummodo voluerint dicere Veritatem facti, et petere Auxilium Justiciariorum; sed si sponte velint dicere quod Disseisina sit, vel non, Admittatur eorum Veredictum sub suo periculo— The latter part of this Chapter shews, that the Contest between Judges and Juries was of a very different Nature at this Time, from what it hath been of late Years. The Reason of this arises from what I have before observed, with regard to it being very common anciently to bring Attaints against Juries, and an Angry or dishonest Judge therefore drove them to the finding an improper Verdict in order to subject them to the Prosecution by Attaint; Admittatur eorum Veredictum sub suo periculo—As this Law is unrepealed, there can therefore be no doubt but a Jury may find what Verdict they please, and the Misfortune is, that they run no Risque at present of an Attaint; there is however generally that Moderation in Juries, that they seldom abuse this Liberty. This Chapter is generally called the Statute of Nisi Prius; it relates to Actions depending in Utroque Banco, without any Notice of the Court of Exchequer.”3

“If you will take upon you to determine the Law, you may do it, but you must be very sure that you determine, according to Law, for it touches your Consciences, and you Act at your Peril.” Lord Mansfield in Baldwins Case. Junius to Lord M.4

3 Black. 378. “The Jury may, if they think proper, take upon themselves to determine at their own hazard, the complicated Question of fact and Law; and without either Special Verdict or Special 220Case may find a Verdict absolutely, either for Plaintiff or Defendant. Vid. page .”5

5. Bac. Abr. 285. 286. relating to general and Special Verdicts.6

1. Inst. 228. a. Littleton §368. “Also in such Case where the Enquest may give their Verdict at large, if they will take upon them the Knowledge of the Law, upon the Matter, they may give their Verdict generally, as is put in their Charge; as in the Case aforesaid they may well say, that the Lessor did not disseise the Lessee, if they will &c.”7 Note. “Altho the Jurie, if they will take upon them (as Littleton here saith) the Knowledge of the Law, may give a general Verdict, yet it is dangerous for them so to do, for if they mistake the Law, they run into the Danger of an Attaint, therefore to find the Special Matter, is the safest Way, where the Case is doubtfull.”8

4. Rep. 53. b. Rawlins Case. 29–30. Eliz. B.R. “And in such Case the Jury ought, if they will, not find the Special matter, and leave it to the Judgment of the Law, to find it at their Peril according to Law.”9

2. Ld. Ray. 1493. Oneby's Case. “The Court are Judges of the Malice and not the Jury.” Page 1494. “Upon the Tryal of the Indictment the Judge directs the Jury thus 'if you believe such and such Witnesses, who have sworn such and such Facts, the Killing the deceased was with Malice prepense express, or it was with Malice implied, and then you ought to find the Prisoner guilty of Murder; but if you do not believe those Witnesses, then you ought to find him guilty of Manslaughter only.'”10

Foster. 255. “In every Case where the Point turneth upon the Question, whether the Homicide was committed willfully and maliciously, or under Circumstances justifying, Excusing, or alleviating; the Matter of Fact, vizt., whether the Facts alledged by Way of Justification, Excuse, or Alleviation are true, is the proper and only Province of the Jury. But whether upon a Supposition of the Truth of Facts such Homicide be justified, excused, or alleviated must be submitted to the Judgment of the Court. For the Construction the Law putteth 221upon Facts stated and agreed or found by a Jury is, in this, as in all other Cases, undoubtedly the Proper Province of the Court. In Cases of Doubt and real Difficulty it is commonly recommended to the Jury to state Facts and Circumstances in a Special Verdict. But when the Law is clear, the Jury under the Direction of the Court in Point of Law, Matters of Fact being still left to their Determination, may, and if they are well advised always will find a general Verdict conformable to such Direction. Ad Quaestionem Juris non respondent Juratores.”11

1 Burrows 393. Bright Exr. vs. Eynon.12 Lord Mansfield, “Tryals by Jury, in civil Causes could not subsist now, without a Power somewhere, to grant new Tryals, &c. &c.13 If an erroneous Judgment be given in Point of Law, there are many Ways to review and set it right. Where a Court judges of Fact upon Depositions in Writing, their Sentence or Decree may, many Ways, be reviewed and set right.

“But a general Verdict can only be set right by a new Tryal,” &c.14 “The Writ of Attaint is now a mere Sound, in every Case: in many, it does not pretend to be a Remedy.”

Vid. page 3 of this Statute.15

Holt. Rep. 702. Argent vs. Darrell. Holt. “We must not make ourselves absolute Judges of Law and fact too.”16

1 Tr. pr. Pais 28317 Littleton quoted, and then a Note. “The Court cannot refuse a general Verdict, if the Jury will find it; it was so held before Justice Wyndham, Lent Assizes 1681 in Verdons Case at Cambridge.“

Whether a Jury may give a Verdict on their own Knowledge, or on the Knowledge of any one of them, without being sworn as Witnesses? 222Vid. 5. Bac. Abr. 292. Tit. Verdicts.18 Vaughan 147. Bushells Case.19 1. Salk. 405.20 Farr. 2.21 1. Sid. 133. Fitz James vs. Moys.22 Cro. Eliz. 616. Graves vs. Short.23 Obs. on Stat. 7424

Holt 701. 2. Ash vs. Ash. Jury shy of giving Reasons “thinking they have an absolute Despotic Power, but I did rectify that Mistake for they are to try Causes with the Assistance of the Judges; and ought to give Reasons when required, that if they go upon any mistake they may be set right.”25

Holt 703. 704. Gay vs. Cross. A general Verdict, and Jury would give no Reason for it. Holt said, “he never had known the like, and that he would have but little regard for the Verdict of a Jury on a Tryal that would not at a Judges desire declare the Reasons which had induced them to give it; for as the Judges of the Courts do publickly declare the Reasons of their Judgments and thereby expose themselves to the Censure of all that be learned in the Law; yet there is no Law obliges them to it, but it is for public Satisfaction. So the Jury ought likewise” when requir'd by the Court to make known the Reasons but the Court would not grant a new trial tho the Judges were very much dissatisfy'd with the Jury. It was a trial at Bar.26

Attaint. Cun. Diet. Tit. Attaint. In what cases an Attaint lies.27 Gilb. H.C.B. 128.28

Obs. on Stat. 74.29 Stat. West. 1st. 3. E. 1. A.D. 1272, chap. 38.30 Le Roi (de son office) donera31 Atteint sur enquestes en pleint de terre, ou de franchise, ou de chose qui touche frank Tenement.

“It is generally agreed, that No Prosecution by Attaint hath been carried on against a Jury for the last 300 Years.” (Note this. Lord Coke lived 150 Years ago, so that the Attaint had been disused 150 Years when he wrote.) “This arises partly from the more modern Practice of granting new Tryals, and partly from the great Difficulty there is in convicting, as the Jury may give their Verdict upon what is known to themselves, though it hath not appeared in Evidence during the Course of the Tryal. It is indeed said, that a Juror having such private Knowledge of a Fact should disclose it, in open Court; but what signifies the mere Advice of a Judge, which cannot be inforced?”32

“It may therefore deserve Consideration, whether this method of Punishment, being now totally disused may not have occasioned a most material Alteration, and Deviation from the Principles, upon which Juries were originally instituted.33

“The Attaint was trial by twenty-four jurors, of double the substance with the first jury; and it is to be observed that it lay only in civil Cases, either by common Law or by this Statute. The Reason is, 224a34 strong Presumption, that no Jury would condemn a criminal contrary to the Evidence: and that it would be inconsistent with the Principles of Liberty to permit the Crown (when it might intend oppression) to call in Question a Verdict of Acquittal.35 Since that glorious aera the Revolution, the Kings of England have only prosecuted as Patriae Patrise when punishment hath been necessary for the safety of the whole; but when we look into Tryals during preceeding Reigns, we cannot but revere the wise and noble Constitution established by our Ancestors against the vindictive Prosecution of a Plantaganet and36 a Stewart.”37

Black. 63. bott. “But, with us at present, The Monuments and Evidences of our legal Customs, are contained in the Records of the several Courts of Justice, in Books of Reports, and judicial Decisions and in the Treatises of learned Sages of the Profession, preserved and handed down to us, from the Times of highest antiquity.”38 Page 73. “And thus much for the 1st. ground and chief corner Stone of the Laws of England, which is, general immemorial Custom, or common Law from Time to Time declared in the Decisions of the Courts of Justice; which Decisions are preserved among our public Records, explained in our Reports and digested for general Use, in the Authoritative Writings of the venerable Sages of the Law.”39

Question 1st. “Does the Opinion mean to declare, that upon the general Issue of Not Guilty, in the Case of a seditious Libel, the Jury have no Right by Law to examine the Innocence or Criminality of the Paper, if they think fit, and to form their Verdict with such Examination?

“2. Does the Opinion mean to declare, that in the Case above mentioned, when the Jury have delivered in their Verdict, Guilty, that this Verdict has found the Fact only, and not the Law?

“3. It is to be understood by this Opinion, that if the Jury come to the Bar, and say, that they find the printing and publishing, but that the Paper is no Libel, that in that Case the Jury have found the Defendant, guilty, generally and that the Verdict must be so entered up?

“4. Whether the Opinion means to say, that if the Judge, after giving his Opinion of the Innocence or Criminality of the Paper, should leave the Consideration of that matter, together with the printing and publishing, to the Jury, such a Direction would be contrary to Law?

“5. I beg Leave to ask, whether dead and living Judges, then absent, did declare their Opinions in open Court, and whether the noble L—d has any Note of such opinions?

“6. Whether they declared such Opinions, after solemn Arguments, or upon any Point judicially before them?”

Questions put by Lord C——n to Lord M——d in answer to a Paper his Lordship left with the Clerk of the Room the day before. M——d refused to answer these Questions, saying he would not answer interrogatories. Newspaper.40

4. Blackstone 35441 “But An open Verdict may be either general, guilty, or not guilty; or Special, setting forth all the Circumstances of the Case, and praying the Judgment of the Court, whether for Instance, on the Facts stated, it be murder, Manslaughter, or no Crime at all. This is where they doubt the matter of Law, and therefore chuse to leave it to the determination of the Court; though they have an unquestionable Right of determining upon all the Circumstances, and finding a general Verdict, if they think proper so to hazard a Breach of their Oaths: and, if their Verdict be notoriously wrong, they may be punished and the Verdict set Aside by Attaint at the Suit of the King; but not at the Suit of the Prisoner, 2. H.P.C. 310.42 But the Practice, heretofore in Use of fining, imprisoning, or otherwise punishing Juries merely at the discretion of the Court, for finding their 226Verdict, contrary to the direction of the Judge, was arbitrary, unconstitutional, and illegal: and is treated as such by Sir Thomas Smith, 200 Years ago; who 'accounted such doings to be very violent, tyrannical, and contrary to the Liberty and Custom of the Realm of England.'43 For as Sir Mathew Hale well observes 2. H.P.C. 31344 'it would be a most unhappy Case, for the Judge himself, if the Prisoners Fate depended upon his Directions: unhappy also for the Prisoner; for, if the Judges opinion must rule the Verdict, the Tryal by Jury would be useless.' Yet in many Instances, 1 Lev. 9,45 T. Jones 163,46 St. tr. 10. 416,47 where contrary to Evidence the Jury have found the Prisoner guilty, their Verdict hath been mercifully set aside, and a new Tryal granted by the Court of Kings Bench: for in such Case as hath been said, it cannot be set right by Attaint. But there hath yet been no Instance of granting a new Tryal, where the Prisoner was acquitted upon the first. 2. Hawk. 442.”48

4. Black. 431.49 The establishment of New Tryals, with the abolition of feodal Tenures, and the Act of Navigation, came out of the Times of Confusion.

5. Rep. 104.50 Bakers Case. “Upon Evidence in an Ejectione firmae between Middleton and Baker, it was resolved by the whole Court, that if the Plantiff in Evidence sheweth any matter in Writing, or of Record, or any Sentence in the ecclesiastical Court, upon which a Question in Law doth arise, and the Defendant offereth to demurr in Law upon it, the Plantiff cannot refuse to join in Demurrer, but he 227ought to join in the Demurrer or waive his Evidence. So if the Plantiff produceth Witnesses to prove any matter in Fact, upon which a Question in Law doth arise, if the Defendant admitteth their Testimony to be true, there also the Defendant may demurr in Law upon it, but then he ought to admit the Evidence given by the Plantiff to be true; and the Reason hereof is, that matter in Law shall not be put to Laymen. So may the Plantiff demurr upon the Defendants Evidence, mutatis mutandis; But if Evidence be given for the King, in Information or other suit, and the Defendant offer to demurr upon it, the Kings Council are not tied to join in Demurrer, but in such Case the Court ought to direct the Jury to find the Special matter, and upon that they shall adjudge the Law as it appeareth 34. H. 8. Dyer 53.51 But that is by the Kings Prerogative who also may waive a Demurrer, and take issue at his Pleasure quod Nota.”

Mem. every Thing that is said by the Court to the Jury, is uniformly styled in our Books a Direction. So the Court give a Charge to the grand Jury to present a particular offence, &c. But the Question is whether the Jury are bound, in Point of Conscience, or of Law, to observe that Direction and find according to it? Are they subject to any Penalty, or Fine, or Imprisonment, or corporal Punishment, if they find contrary to that Direction? No Man will say that they are.52

Question. Whether Indebitatus Assumpsit may be maintained for “Sundries” or “Sundry Goods Wares and Merchandizes,” or “sundry Goods Chattells and Articles,” without any Account or Schedule of Particulars annexed to the Writ, or enumerated in the Declaration. Saunders 69. Peacock vs. Bell & Kendal, 70, 71.

“Ind. fuisset pred. Ri. and Ben. in £39 L.M.” “Pro diversis Merchandizis et Mercimoniis, per pred. Ri. and Ben. eidem Johanni Peacock, ad Specialem instanciam et Requisitionem ipsius Jo. Peacock, ante Tempus illud vendit et deliberat. Et sic &c.”53

2. Instructor cler. 161, 2. “If one be indebted unto another upon simple Contract, and the Plantiff sue for it upon a Promise to pay it, he must shew how the first Debt grew due and for what; as upon an Indebitatus Assumpsit where the Debt is the Consideration of the Promise.”54

Sed Vid. 55 is not said how particular you must be. See 2. Ins. Cler. 157 a Declaration for diverse Merchandizes sold and deliverd.56