Robert Treat Paine Papers, Volume 1
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.
339Q 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
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 Ten
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
Quære 3d I
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:
Per tout et non per my. By the whole, and not by the moiety.
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).
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).
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.
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.
Henry Swinburne, Briefe Treatise of Testaments and Last Willes. 1743 and other editions.
Upon reflecting on the modern Modes of Deportment, I have been lately almost tempted, to credit an Observation I have met with some where, That "many of the Fair Sex are formed of so indelicate a Mould as to seem rather better distinguished by the Appelation of Men than Women." This Observation, to the Enthusiastick Frenzy of the341Lover, which pictures to itself a beloved Object, in the Attitude of an Angel, will I know, be looked upon as entirely groundless, & without Foundation; But Alass! Who is there, that has thus given a Loose to Fancy, but has at last been undeceived & forced to confess that this Angel of the Imagination, was but a fall'n one in Reality.
America, I am well satisfied has been reputed famous for producing the finest natural Beauties on the known Globe; and so striking an Expereince has often convinced me of This, that I have not the least Room left to admit a Doubt of it's Truth; But I could sincerely wish, how well soever it may deserve that Character, That the Introduction of foreign Customs, as well as of Foreigners, had not so fully assured us, that Art may sometimes even unpolish Nature, and make that, odious & fulsom, which was just before agreable & lovely.
I am led to These Remarks, by observing of late, the too general Deviation, from Modesty the Standard of Decorum; the reigning Indecencies of Dress; And I'd almost said of Manners, & Behaviour! Is there any, that now turns his Eye on the Circle of Beuties, but instead of the amiable Blushes of the Virgin, beholds an unusual Boldness and Assurance? An immodest, masculine Air, that creates rather Aversion than Esteem? Where is now that Tenderness & Delicacy, Those engaging Criterions of Beauty, that once bloomed in the Countenance of the Fair, & gladdened the Face of Nature? Who sees not insted of concealing, an Endeavour to reveal Those charms that should shun the Appearance of Day? Carried away with a Notion that such & such Fancies are in Vogue in the politest Cities abroad, They are now taught to warp Nature, & Imbibe Principles of Decency, that Lewdness would be almost ashamed to own! Fluctuating like Straws & Bubbles in the Tide & on the Waves of Fashion, We now see nothing but a new Trick of Deportment, with the Change of every Wind, & an inconstant Vicissitude of Gesture & Dress.
But who are the Losers by all This? If we are once admitted behind the Scene & shewn all, What is there further to entrance or engage our Affection? There is Nobody that has once seen a fine Piece of Painting, or heard an agreable Concert of Musick, that has so fond a Desire to see the One, or hear the Other. I cannot believe it is the Design of that Sex in general, to obtain the other's Sphere of Action, & become Men; No, I would rather think, their Amibition is still to please; That tho the Efforts of a powerful Fancy, & the Prevalence of Example, may have implanted in them an Over-fondness for Novelty, yet that on a little cool Reflection,342They will again return to the wonted Paths of true Politeness, & shine most in the proper Sphere of domestick Life.
For my Part I'm not insensible of the soft Powers that Nature (our common Mother) has bestowed on them with a liberal hand; Nor am I so great a Stoick to imagine as some have done, that They have neither Capacity nor Inclination for the Improvement of Reason & Science: I am apt to think this Reflection may with equal Propriety be cast on our Sex as Their's; for the Number of Beaux has always been equal to that of Belles. But be This as it will; We have neither of us any Reason to complain of the Author of our Being; but I think, have it entirely in our own Breasts, whether we will be pleasing to each other or Disgustful.
You may perhaps, by this Time, imagine These Observations might with more Propriety have been addressed to a Lady; I had serious Thoughts of it I assure you; But then the Misfortune was, I looked upon 'em In great Danger of never being read; And of Consequence my losing that Notice, for which an Author braves the rough Hills of Parnassus.
This lucky Forecast, gave me the first Thought of writing to you; both on account of your Genious & Taste for every Thing, & your having the Interest of both Sexes equally at Heart; And you need but imagine, a Breast warm with the Fire of Friendship, & a Mind that always thinks of you with Esteem and Honor, to be convinced who writes.
Alexander Pope, The First Epistle of the Second Book of Horace Imitated (London, 1737), line 409.