Legal Papers of John Adams, volume 2
In these cases the defendants stood accused of violating province laws forbidding interference with the upstream spawning run of alewives. Under the statutes, an action was to be brought in the name of a private citizen on a qui tam basis; that is, upon conviction, the penalty sued for would be divided between the informer-plaintiff and the poor of the town where the offense had been committed. Clark's case (Document II) was apparently straightforward, and Adams won “Verdict for Def't Costs” as well as a 48s. fee.1
The Loring case was more complicated. From the files2 it appears that Loring and three others owned a sawmill at the mouth of Island Creek Pond, Duxbury, and that Wadsworth, Adams' client, the town officer responsible for assuring compliance with the law, had commenced an action against them under the statute. Prior to the writ's return day, however, Loring and the others gave Wadsworth a penal bond for £100 conditioned on the town's agreeing to give up its share of the statutory fine. Perhaps behind this arrangement lay an offer of settlement: Wadsworth, who would ordinarily be entitled to half the statutory fine, may have agreed for some reason to accept less than this and to nonsuit himself;3 but, because Wadsworth could not legally control the town's rights in the litigation, it would be necessary for the defendants to obtain the town's relinquishment of those rights. The bond, therefore, merely protected Wadsworth's interests.
The March 1765 Duxbury town meeting voted “No” to the proposition, but a special meeting on 13 May 1765 voted “Yes.” Meanwhile, the bond had fallen due. Wadsworth's action on the bond commenced at the Plymouth Inferior Court, October 1765, and was continued4 to the Plym-17outh Inferior Court, April 1766,5 from which Adams' minutes (Document I) date.6
The plea raised as defenses not only the May 1765 vote, but also Wadsworth's acts between the execution of the bond and the March meeting. Wadsworth was alleged to have “set himself to invite and perswade the inhabitants . . . to vote against” the proposition and to have succeeded, “by means whereof said condition was rendered impossible to be performed by the plaintiff's own doings.”7
This plea, something in the nature of a defense in confession and avoidance, threw the burden of going forward upon the defendants. It was therefore they, as Adams' minutes show, whose evidence opened the trial;8 and it was they for whom the jury returned a verdict.9
JA, Docket, Barnstable Inf. Ct., Dec. 1767, Adams Papers.
SF 142238.
Paine's minutes, however, suggest that the settlement may have involved an over-all payment by defendants of £30, to be split between Wadsworth and the Town. Paine Law Notes, Plymouth Inf. Ct., April 1766.
Paine Law Notes, Plymouth Inf. Ct., Oct. 1765.
Paine Law Notes, Plymouth Inf. Ct., April 1766.
JA's minutes almost exactly parallel Paine's; moreover, the cause was not tried in the Superior Court during JA's connection with it. See notes 9 and
Plea. SF 142238.
“[I]f the only issue was raised by a plea in confession and avoidance the defendant would begin.” Sutton, Personal Actions
123. It seems, however, that in England, at least, the question of the defendant's right to open was not settled until the early part of the 19th century. See Cotton v. James, M. & M. 273, 278, 173 Eng. Rep. 1157, 1159 (N.P. 1829).
SF 142238. On appeal to the Superior Court new pleadings were allowed and the judgment was reversed. Min. Bk. 82, SCJ Plymouth, May 1766, N–8; id., May 1768, C–5. SCJ Rec. 1767–1768, fol. 186. JA dropped out before final judgment, but his dockets show that he received fees totaling 6s. for the Inferior Court, and £6 7s. 4d. in the Superior Court. JA, Docket, Plymouth Inf. Ct., April 1766; SCJ, May 1766; SCJ, May 1767.
1766-04
Paine.2 Wadsworth, a Commissioner of Duxborough to take Care of the Herring Way.
Q. Whether Wadsworth did any Thing to defeat the Condition?3
Levi Loring. Deposition. Making Interest.4 Told Town, nothing was done.
Thomas Adams.
Pirez Loring. Would make Interest, but Lor
Jno. McGlathly. Judah Sampson came and wantd him to see how
Abner Louden. Askd to go to Meeting but not to vote. Voted against it.
Job Brewster. General talk unfair to make Int
434. 435. 436. Our Act.5
Confession—whose case.
Hovey.
6
Coll. Bradford. Fair Vote.
D
eaco
n Wadsworth. Defendants said make what Interest you can and so will I. Aggrievd the People.
Prior. Enemy.
P. Sampson. Petition not to give up the Priviledge.
In JA's hand. Adams Papers, Microfilms, Reel No. 185. Facing page is docketed “Supr. Ct. Wadsworth v. Loring & als.,” without more. See notes 5, 6, and 9, above.
Robert Treat Paine, counsel for Loring et al.
It is not clear from the MS whether this is JA's query or Paine's.
That is, using influence in order to obtain votes.
“[W]hosoever shall hereafter erect or build any dam across any such river or stream where the salmon, shad, alewives or other fish usually pass up into the natural ponds, to cast their spawn, shall make a sufficient passage-way for the fish to pass up such river or stream, through or round such dam, and shall keep it open, for the free passage of the fish, from the first day of April to the last day of May, annually; and all the owners or occupants of any mill-dam, or other dams heretofore erected and made across any such river or stream where the fish can't conveniently pass over, shall make a sufficient way, either round or through such dam, for the passage of such fish, at or before the first day of September next, and after that to keep such passage-way open from the first day of April to the last day of May, annually, on pain that every person offending, in any of the particulars aforesaid, shall forfeit and pay the sum of fifty pounds for each offence. . . . [T]he owners or occupants of such dam or dams shall allow sufficient water-passage round, through or over such dams, for the passage of such fish or their young spawn, in the season of their going down such rivers or streams, on penalty of forfeiting the sum of fifty pounds for every offence. . . . [T]he several fines and penalties arising by virtue of this act, shall be sued for and recovered in any court of record proper to try the same, by any person that shall prosecute and sue for the same; one half of such sum to be to and for the use of the prosecutor, and the other half to be to and for the use of the poor of the town where the offence shall be committed.” Act of 15 Jan. 1742, 2 A&R 1087–1088.
The numbers “434. 435. 436” in the text are unexplained. They do not refer to Acts and Laws, Of His Majesty's Province of the Massachusetts Bay in New-England (Boston, 1759), where the Act appears at p. 297.
James Hovey, with JA, counsel for Wadsworth.