Robert Treat Paine Papers, Volume 2
Mr. Cudworth hath sollicited me to trouble you with a few lines on his case with Turner, the merits of which are too copious to be described in a letter; therefore for that part shall referr you to the bearer. You will perceive by the declaration the plt. alledges "that he sued out of the inferiour court of common pleas" &c. this is exceptionable. It ought to have been he purchased an attachment out of the clerks office &c pursuant to the province law. There is not any allegation of a judgments being obtained on the writ returned. Or that the such was ever entred this I think must be fatal. No allegation of an execution or return all which ought to appear in the declaration. These with other remarks which probably appear will occur to you must be plead in abatement, so that time may be gained unless the plt. will consent, the return of the defendt. notwithstanding that he shall be allowed to give in evidence the whole circumstances of the case. In that the difficulty with the defendt. is the irregularity of his falsifying his own silly return. If you can guard against this evil by any agreement we shall have a good case. It is said In the copy of the writ which I have "and took his security" The return the officer says on the original is not so. However my copy may not be true. If this should be the case nothing will come of the observation, but otherwise, this variance may serve a good purpose in the trial at the superiour Court for I do not think it prudent to mention it at the inferiour.1 I am yr. hume. Servant
Nathaniel Turner, shipwright of Pembroke, charged Benjamin Cudworth, gentleman of Boston, in his capacity as a deputy sheriff of Suffolk County, for allowing Daniel Robbins, a mariner of Pownalborough in Lincoln County, to escape from his custody. Turner claimed damages of £140 for a broken covenant with Robbins, plus costs of the original suit. At the April 1768 term of the Plymouth County Court of Common Pleas, this case was submitted to the arbitration of Samuel White, Josiah Edson, and Samuel Adams. The referees allowed the full judgment of damages and costs to the plaintiff (Plymouth Court Records, 8:267).