Milton Septr. 6th 1764 Sr.,

This comes by Mr. Meriam. He & others are sued by Mr. Manley and others for their doings as commissrs. of sewers. If you are engaged for the pit. you will immediately return this letter to the bearer without reading the rest of it. If you are willing to be for the defendants they will give you a fee & then read on.1

Being now at Milton where I have not my books I am unable to determine whether the doings of the defendants may be justified by the laws relating to commissrs. of sewers. This you will consider yourself on view of the laws. I apprehend it will be best to plead not guilty reserving the special matter to be given on the general issue if the other Party will consent to it. For there is one thing the defendants inform me which if true will prevent the plt.'s recovering any thing though our defence should not be well founded. That is that the plt. hath sustained no damage & ground more in his mill the season he complains of in his writ than in the like time ever before. This being so he is entitled to no damage let the justification be good or not.2

If the other party should refuse to admit a special non cul.3 and you should think it proper to rely on the laws relating to commissioners of sewers it will be best to move for a continuance in order to plead specially. I conclude you will not care to draw a long special plea as that must be under the general in the hury of the court, and I am afraid whether we come under the genral law of officers pleading generally & giving the special matter in evidence. Then you know that if upon special pleading the case should be adjudged against us and a jury of inquiry should assess the plt.'s damage at two pence he could have no more cost than damage.

I send yr. letter open by the bearer because it concerns only him & his companions in the defence & if you should be against him he might show this to any other council he applies to. yr. most hble. sevt.

O THACHER

RC ; addressed: "To Robert Treat Paine Esqr. in Taunton."

1.

This case was heard in the Bristol County session of the Superior Court of Judicature (October term 1764) as David Gay & al., aplts. v. Seth Manley & al., aplees. RTP and Benjamin Gridley represented the appellants, while Samuel White and Edmund Trowbridge stood for the appellees. The jury found for the appellees and assessed 10 shillings damages plus costs at £6.11.2.

2.

In 1702 the General Court enacted legislation to create the position of commissioners of sewers307in order to regulate the flow of rivers and streams. The commissioners were authorized to remove any "banks and stoppages" which might cause flooding to meadows and other low lands (Province Laws—1702, Chap. 11). In 1746 this law was amended to impower the commissioners to open the floodgates of any mill-dam to facilitate drainage of flooded areas or to determine the location of any blockages. This act likewise allowed the owners of mill-dams to collect for damages caused by such actions (Province Laws, 1745–1746, Chap. 16).

3.

Non culpabilis. Not guilty.