Robert Treat Paine Papers, Volume 1
I Recd. yours dated 9 & 17 Nov. & what was Inclosed in the Same,1 I should have answered you before, but Business of another kind prevented. Your Quaeres I shall put down just as I Received them from you & answer them as well as I am capable; trusting that if I am wrong in my Answers you will correct me as soon as Time will permit, lest I should be confirmed in my Errors.
Quaere 1st: Two joint obligors one dies how must the Bond be sued?
Ans: The Survivor must be Sued & the Death of the Deceased Obligor Suggested.
Q. 2. If it be father & son father dies & makes his Son Extor.?
A. just in the same manner as if the Son was not Extor.
Q.3. Two joint obligors in different Governments what is the Methd.?
A: Writ must be filled against both & the Officer will serve the writ upon the man in this Province & Return non est inventus2 as to the others
Q:4. what is the meaning of this Clause in the Act of Distribution vizt:377no Representatives shall be admitted among Collaterals after Brothers & Sisters Children.
A: I take the Nature of a Representation to be such, that it ought to take place; where the Person Represented had a right in the Goods of the other, as a son to Succeed in the Estate of the Father, being esteemed but as one Person. Now if the son dies before the father, his Children upon the same account have a right to succeed, and therefore the son is represented by them. But one Brother has no right in the Estate of the other Brother, while he is living, and therefore if he dies before the other Brother (leaving Children behind him) they cannot in Strictness be said to Represent him in any right of Claim he had to his Brothers Estate. but to put it in a clearer light Suppose A.B.C. Brothers Children, A. has a son E. & then dies. B. has three Children F G H & then he dies. Then C. dies leaving no Children, now the Queston is how shall the Estate of C. be divided agreable to the aforsd. Statute.
Ans: It is to be understood by the Same Statute that Collaterals after Brothers & Sisters Children shall succeed (though not as Representatives) according to the Proximity of their Degree in infinitum there being no first Degree to bar the Succession now it is evident that F. is as nigh to C. as E. the only Son of A. is. Therefore F. by sd. Statue has as good a right to the Estate of C. as E. has; & Consequently the Estate of C. must be equally divided between E. F. G & H.
Your 5th Question you answered yourself, & the Sixth Vizt. Can a Man devize away his Estate in such Quanty, as to debar his wife of her Thirds in the Personal Estate, I am not able to answer, but I think the Wife may go before the Judge & decline taking by the will & then she will be Intitled to her thirds, but I am altogether uncertain. Inform yourself in this Point & inform me.
I have Inclosed an Indenture of an Apprentice. I should be glad you would draft a writ upon it & show it to some attorney & send it back to me by the Bearer hereof. The Breach is the master refuses to give the Apprentice any Cloaths. I should have drafted one myself and sent it to you to show it to some attorney, but I have not Time by this Conveyance. Quer: Can a Town lay out a Road thro a Mans Land and open the same without first paying the man for his Land?
Quer: If an Apprentice should absent himself from his Masters service and afterwards return to his Master and serve him the Remainder of the378Term and after he is Twenty one make up the lost Time, will it be look'd upon he fulfilled his Indenture and can he Sue his Master for not fulfilling his Indenture?
I am Sr. yr. hble. Servt.
Remember me to all Friends
None found.
"Not found." The sherrif's return to process requiring him to arrest the body of the defendant, when the latter is not within his jurisdiction.
It wou'd be a great pleasure to me if I cou'd find in myself a Capacity to write a Rational letter but alass! I am so incumbred with the affairs of this world that I can think of nothing else. Father is much worse and grown so resolute and Self will'd that I know not what to do. I Supose you have seen nurse who has been from me ever since tuesday. She promis'd to see and inform you whether she cou'd Come back to me if not whether the person from Mrs. Voakes or any other mention'd wou'd Suply her place. Kind Providence (on whom alone is my dependance) has Sent Catto to our relief. He is well & behaves well so that at present I am Comfortable. Poor Sisster is again in great tribulation. I have not seen her since she left Boston for she was taken Sick imediately with a strange Eruption as she calls it but Suposes it to be the Swine Pox tho' it appears different from the neighbours who have all had it. She has lost her voice wholly, breathing is a burden she just writes me. I have Sent to insist upon her Sending for a Docr. I dare not visit her lest I shou'd be taken in to bear her Company which at this time I dare not do. When I began to write I expected to Send by a boat but tis gone along without our barrel or directions to Come to you, but shou'd be glad if you wou'd take the first opertunity to Send down the things for fathers Chamber is very Cold. He has lost his left hand by Somthing that appears like the Rumatism. I am writing in his Chamber to keep him easy and his distracted talk has almost turn'd my brain. So Farewell & Remember your Friend & Sister,
PS Dec. 12. Instead of Pray's boat our Soilder is to be the bearrer to morrow morning. I have seen Capt. Ford yesterday who informs that Sisters illness is not the Swine pox as was thought but Proceeding from her old Stock of infirmitys. I think I have no more to add.