Boston Jany. the 12th: A.D. 1756 Dr: Sr

As to news Sir I Refer you to our Good friend Treat for my own Part I know none. All things Remaining even as they were men Pursuing their Vices Some to this some to that. Women to Dress & Vanitys their Ever most Dearly beloved. I have taken the Liberty to Write Down a few Questions Beging your Resolution of them.

Qu. 1st: the Case is this A Devised 200d. Acres of Land to B. & C & to the Heirs of their Bodies begotten to be Equally Devided between them & Died. B. & C measured the Land & gave Each other a Quitclaim of Each's one hundred Acres. Is that a Good Division & if so can they be Jointly Impleaded in Suffering a Recovery in order to Save the Costs of two suits.

Q 2d: where A Sues B: upon Bond or Single Bill & B. Pleads Payment without accquittance & Payment is found can A Recover the Contents of said Bond or Bill.

Q 3d: if A the Mortgagor mortgages Lands in this Province to a Mortgagee in another Province is the Deed Void Without a Stamp or not.

339

Q 4th: Where A Devises Several Legacies to B, C & D & Dies Leaving two Exrs. to Whom also he Gave Legacies & the Surplus of all his Estate. Now threre is found Due to the Testator from one of the Exrs. 3000£ there being Assetts Sufficient in their hands to pay all Debts & Legacies. Shall this 3000£ be looked upon as Surplus or be Extinguished by His being made Executor.

Q 5 Shall a Right to a freehold be Destroyed by Acceptance of a Collaterul Satisfaction.

Q. 6ly Where husband & Wife Join in a Sale of the Wifes Land Shall any thing Pass by the deed by Reason of the Coverture

I am sir your most Humble Servant

Entred 58 Actions this Court

JOSEPH CUSHING

Ques: 1. Devise to A & B & Heirs of their Bodys to be devided &c.

1st. The Devision was good

2dy. They cannot be jointly impleaded because they were Tenants in Common by the Law before such devision made; A Devise to two in Fee to be devided, they are Jt.Tenants. before Devision & may be jointly impleaded, but a Devise to two & the Heirs of their Bodys to be devided equally, makes them Tenants in Common from the Begginning, for the Devision, hinders them being seized per me & per tout1 & consequently not Jt. Tenats: vid: Lilly2 Abr: Dev: 619. I. 2 Lilly3 686 H. I Lev:109 by wch. it appears Tenants in common Join in Real Actions, therefore tho' they cannot be joined, yet they may join & consent to be impleaded, and such a Recovery will stand Good. Vid 3 Salk4 202 & 203

Quære 2 A Sues B upon Bond or Single Bill, B pleads payment in Bar without Acquittance Payment is found, can A recover the Contents of sd. Bond or Bills

Answer I am of opinion, that Payment if pleaded in Bar will be Sufficient to Bar the Plt: from maintaining his Action, But if Payment of the Bond is given in Evidence upon the Trial, the Jury will find the whole Penalty of the Bond for the Plt. & Costs, and the Court will afterwards chanel? the Bond down to small matter & give the Plt: Costs. vid Lill:379 M. 2 Lill: 380 B.

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Quære 3d If a mortgager gives Bond in Another Province &c.

Answer I imagine the Bond must be stampt because it relates to a realty in a province where such a Law is in force, & where the Deed must be sued out.

Quære 4th If A devises Several Legacys &c

Ans: It seems it shall be surplus & not Extinguisht, but he shall come in for one moyety as a Residuary Legatee, for altho'; the Action be exting: by Creating him Exr.: yet the Duty remains & shall be assets till Debts & Legacys paid. vid Woods Insti5 P:289 of Release: 339. of Assets Swinburn6 360:361: the very Case 364.

Quære 5 I have not the least Idea of yr. meaning I Ins:36:

Q. 6 Where Husb: & Wife join &c.

Answer Bar and feme have power to levy a Fine as: I Ins: 353: But if Feme may waive a Fine levy'd of her Dower if done during Coverture: vid I Ins: 36:6: Wood 280 ult. Stat. 32.Hen:

RC ; addressed: "To Mr. Abel Willard In Lancaster Atty. at Law." Docketed by Charles Cushing Paine: "Joseph Cushing to A. Willard with law queries Jany. 1756 & reply of R.T.P." The list of questions and answers is in the hand of RTP.

1.

Per tout et non per my. By the whole, and not by the moiety.

2.

John Lilly, A Practical Register: or, a general abridgment of the law, as it is now practised in the several courts of Chancery, Kings' bench, Common pleas and Exchequer, 2 vols. (London, 1719).

3.

Here and below (in response to question 2), RTP seems to cite a second work by Lilly, probably The practical conveyancer; in two parts (London, 1719, 1732, 1742).

4.

William Salkeld, Reports of Cases in the Court of King's Bench, with some special cases in the Courts of Chancery, Common Pleas and Exchequer. Various editions through 1743.

5.

Thomas Wood, A New Institute of the Imperial and Civil Law; to which is added, an Introduction to the Laws in general with notes. 4th edition, London, 1730.

6.

Henry Swinburne, Briefe Treatise of Testaments and Last Willes. 1743 and other editions.