Scituate Feby. 4th 1759 Friend Bob,

I am much obliged for your kind & benevolant Epistle of the 14th Octo. last & doubt not youll excuse the dilatory Reply when you reflect that a considerable flow of Spirits is necessary to talk with a man of your Vivacity. And I wish I could say I had a tolerable Degree thereof at present supported by the Basis of good Health. I use the Law at present with Moderation & now & then have an Application, which as much as any thing, tends to keep up the due Tone of the Solids to circulate the fluids and to the beneficial Exercise of the mind. And now I am upon Law I would have you resolve me by your best authorities in Boston. Two Points, viz, 1st Whether in a Writ of partition by Tent. in Common against another, the Plt. ought to Set forth particularly his Title, which Seems to be Supposed by several Cases in Nelson's Abridg1 .2 2. If 4 men are tenants in Common of 11 acres of Land & one of 'em aliens his 1/4 to three persons making 'em jointenants, so that the sd. three persons own 1/4 & the other 3 own 1/4 each. Whether if the first mentioned 3 & Two of the other 3 bring a Writ of partition against the 6th man who refuses to make partition, Whether, upon the same Writ partition may be made of the one 1/4 belonging to the 3 jointenants, ie. Whether the Share of each jointenant in the sd. 1/4 shall be severally set off?

So much for Law. Sir, I should be glad to See you in these parts if it Should fall in your Way, or if it Should not. I am Sir your Sincere Friend & Humbl. Servt.

WM. CUSHING 129

RC ; addressed: "To Mr. Robert Treat Paine Att. at Law at Boston"; endorsed.

1.

William Nelson, An Abridgment of the Common Law of England, 3 vols. (London, 1725–1726).

2.

Four lines of text containing Question 2 were cancelled.

Lancaster Feby. 24 1759 Sr.:

You must be Sensible that you are exposed to an Action for breach of promise made me at Littleton, & I cannot pass it over without Satisfaction, it may be Settled now without going into the Law if you will forthwith come to Lancaster & not otherwise for nothing short of your appearance will Satisfy. I Suppose you will think an action at Common Law wont lie because you received no Consideration for your promise Ergo nudum pactum est1 but this wont save you for I design to commence my Suit by way of Bill in the Court of Chancery & there I am Sure I shall obtain for I remember a Case directly in point where one man Sued another for a Sum of money that he had promised & the Deft. upon tryal proved he recd. no Consideration but the Plt. proved he used no fraud in obtaining the promise & upon that the Chancellor said there was no relief for the Deft. and that he must pay the money & Costs too. I suppose, therefore I hope you will Settle the affair as you must be Sensible the Law is on my Side.

1 Quære A. & B jointly & Severally bound to C. A dies & his Estate represented Insolvent. C. puts in his Claim to A:s Estate & receives his proportion with the rest of the Creditors to As Estate, can C. afterwards come upon B. for the remainder of the Bond.

2 Quære A bring a writ of trover against B. & B is guilty of a Conversion but proves it to be after the Conversion to be after the time that it is laid to be in the writ. Will the action fail, or is the time of the Conversion traversable.

3d Qur. Will an Action of trover lie where a general Action of Trespass will lie. As for Instance A Breaks the Close of B. & enters & carrys away B's horse in his Sight. Will trover lie & if it will lie will not the tortious taking be aprove of Conversion.

Vid: Modn. Entries 3592

4 Quæer: A. being a Sheriff has a Single writ against B. A shoes the writ130to B. but say nothing more to him & afterwards A. & B. goes into a room with several other Persons & after that A. goes out of the Room & B goes home & then A commands assistance & pursues B as an Escape, the Assistance overtakes B. & Seizes him in his Majesties name as their Prisoner & holds him untill the Sheriff comes up & takes him, and the Place where the Sheriff take him is out of his precinct. Is this Justifiable in the Officer or Assistance & if it is not how must they be prosecuted.

I should be glad you would answer these Quere & send by Aaron.3

My business will not allow of my going to Plymouth Court with you & believe shant be at Boston before the last week in april. If your business will allow of your coming to Lancaster before that time send me word & I will Send you a Horse. I am Sr. yr. Friend & hble. Servt.

ABEL WILLARD

RC ; addressed: "To Mr. Robert Treat Paine in Boston"; endorsed: "this is some new made Ink A. Willard 1759." A financial tally is written on the verso.

1.

Therefore it is a nude pact, i.e. one without consideration.

2.

John Lilly, A collection of modern entries; or Select pleadings in the courts of King's bench, Common pleas and Exchequer . . . London, 1723, 1741, 1758.

3.

Perhaps Aaron Willard (1725–1781), another of RTP's kinsmen who lived at Lancaster and later at Lunenburg. This man served in the provincial army in 1759 and later during the Revolution (Willard, Willard Genealogy, 104).