In JA's hand. Adams Papers, Microfilms, Reel No. 185.

“If two several owners of Houses have a River in Common between them, if one of them corrupt the River, the other shall have an action upon his Case.” Coke, Littleton 200b, §323.

Coke, Littleton §315: “By this it appeareth that Tenants in Common shall have personal Actions jointly. And it is to be observed, that where damages are to be recovered for a wrong done to Tenants in Common ... and one of them shall dye, the survivor of them shall have the action.”

Some v. Barwish, Cro. Jac. 231, 79 Eng. Rep. 200 (K.B. 1610): “Where a Nusance is made to the land of two Tenants in Common, ... they shall joyn in the Action; for it is personal.”

Apparently an inadvertence for 1 Vent. 214; see note 15 7 below.

This does not relate to the preceding citation, but the state of the MS suggests that it may pertain to the citation to Mallory, Modern Entries , note 16 8 below.

Anonymous, 1 Vent. 214, 86 Eng. Rep. 144 (K.B. 1673): “In Trespass Quare clausum fregit 'tis a Plea in Abatement to say, That the Plaintiff is Tenant in Common with another: But cannot be given in Evidence upon Not Guilty, as it may where one Tenant in Common brings Trespass against the other.”

1 Mallory, Modern Entries 31: “If there be two Tenants in Common, and one only brings an Action where they ought to join; if this appears by the Plaintiff's own shewing, the Defendant may take advantage of it upon the General Issue, but if it does not appear, then it ought to be pleaded in Abatement. Latch 153.”

Harman v. Whitchlow, Latch 152, 82 Eng. Rep. 321 (K.B. 1627): If one joint tenant or tenant in common brings an action alone, and general issue pleaded, and the tenancy in common appears by the verdict, judgment for the plaintiff; the plea should have been in abatement.

The witness refers to the entry of payments on the back of the bond (or lease). This document is not in the file.

Deed, Jonas and Mary Prescott to Jonas Prescott Jr, 8 Oct. 1719; Middlesex Reg. Deeds, Lib. 19, fols. 456–457; SF 148227.

Deed, Jonas Prescott [Jr.] to Ebenezer Prescott, 17 Aug. 1749; Middlesex Reg. Deeds, Lib. 48, fols. 621–622; SF 148227.

A receipt for this deed, John Shipley to Ebenezer Prescott, 21 Oct. 1727, is in SF 148227.

James Putnam, counsel for the Prescotts.

Deed, Jabez Keep to Jonathan Keep, 22 May 1771; Middlesex Reg. Deeds, Lib. 72, fol. 1; SF 148227. JA was noting that this deed answered Putnam's argument.

Deed, Samuel Kent to Jabez Keep, 19 Nov. 1729. Middlesex Reg. Deeds, Lib. 71, fols. 56–57; SF 148227.

Deed, Samuel Kent to Caleb Lyman, 20 Mar. 1735. Middlesex Reg. Deeds, Lib. 36, fol. 120; SF 148227.

Will, Caleb Lyman, dated 18 March 1737. SF 148227.

Deed, Samuel and Susanna Hunt to Jabez Keep, 11 Sept. 1770. Middlesex Reg. Deeds, Lib. 72, fol. 317; SF 148227.

See note 25 17 above.

Deed, Benjamin Prescott to Samuel Hartheway, 29 June 1728. Middlesex Reg. Deeds, Lib. 72, fols. 479–480; SF 148227.

Articles dated 6 Feb. 1720, between Jonas Prescott, Jonas Prescott Jr. Benjamin Prescott, John Shaple, John White, and Caleb Trowbridge. The parties agreed “to build, Erect and set up, a Good strong Sufficient and Substantial Forge, Building or Works for the making of Iron by one Fire on, or by, the Brook called Stoney Brook in the Township of Groton almost at the same Place where the said Jonas Prescott has a sawmill not long in standing.” SF 148227.

“We the Parties above-named do Covenant consent and agree that when and so soon as the Greater part of the Owners abovesaid their heirs, or Assigns shall conclude and agree to Let alone and cease Improving of the said Forge, or Iron Works for the Use aforesaid. The Irons, other Tools and materials, shall be sold and the money that shall be received for them shall be Divided, and Shared betwixt us, our heirs &c. In Proportion, to what Each one is to Pay, as aforesaid or Otherwise disposed of as the Major Part of us shall Agree and conclude upon.” SF 148227.

MS unclear. But probably in response to Putnam's argument that the damages were only the iron lost when the bellows stopped, JA contended that the damages ought to include the value of the wasted fuel and (possibly) the lost profits.

Probably a reference to the Act of 15 Jan. 1742, set out in No. 34, note 14 5 .

See note 10 2 above.

Probably this should be 2 Blackstone, Commentaries *109: “A base, or qualified, fee is such a one as has a qualification subjoined thereto, and which must be determined whenever the qualification annexed to it is at an end. As in the case of a grant to A and his heirs, tenants of the manor of Dale; in this instance, whenever the heirs of A cease to be tenants of that manor, the grant is intirely defeated.”

Presumably this refers to a case in Lord Raymond's Reports, and to a dictum by John Powell (1645–1713), puisne judge of the Court of Common Pleas (1695) and the Court of Queen's Bench (1702). DNB . The editors have not been able to identify the case.

This also is from an opinion, presumably printed in Peere Williams' Reports, which the editors have not been able to identify. Thomas Parker, first Earl of Macclesfield, was Lord Chief Justice (1710) and Chancellor (1718). DNB .

In JA's hand. Adams Papers, Microfilms, Reel No. 185. Dated by reference to adjacent minutes on MS, Smith v. Child, which was tried sub nom. Child v. Smith at the Cambridge Superior Court Oct. 1772. Min. Bk. 96, SCJ Middlesex, Oct. 1772, N–6. Many of the deeds are in the file of Prescott v. Keep. See text at notes 19–29 11–21 .