Robert Treat Paine Papers, Volume 2
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.
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.
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).
Non culpabilis. Not guilty.
Last week I was at Plymo. & find there can be no Accomodation of the affair with Pierce, so we have concluded to have it determind by the Judges. Mr. Hovey has appointed next Fryday, at which time I shall wait upon you prepared for the Tryall.1I am Sr. y. friend &c. &c.
See Joseph Greenleaf to RTP, Abington, Jan. 1, 1764.
I have just a minute to write you by Mr. Leonard & inform you that your writ against Calef was not Served. I entered The Action but was told upon delivg: my List that The officer had lodged The Writ in the Office but had made no Service. The man I think having taken his Flight just before he recd. it.
Inclosed is a Bill of Exchange for £50 Stg: & Protest by which poor Bror. Wigglesworth1is like to be deeper involved. To help him out as much as I can, I forward this desiring you would be so good as to summon on the absconding act,2 for me in his Name immediately Reuben Delano of Dartmouth & John McWhorter of Taunton, first enquiring of The latter whether he is yet in Debt to Gould. I know He was lately; & I am certain The other is now. You may add in The Summons if you think worth while The Officer who recd. Nye's Debt. Wm. Davis & Nicholas Davis both of Dartmouth, did owe Gould considerable, but whether They have not discharged their Debts I am uncertain. If you can find out308by any means, I wd. have you add or omit them. I am afraid of their claiming Costs if They have nothing. If you think They will not, & judge it best to risque it, do as you please. I will forward a Power, & your Fees shall be taken Care of by Yours very respectfully
NB Call Mr. Wigglesworth junr. of Cambridge Gent.
Edward Wigglesworth, Jr. (1731/2–1794), following an unsucessful merchant career, had been appointed a tutor at Harvard College in 1764, the year before succeeding his father as second Hollis Professor of Divinity (Sibley's Harvard Graduates, 12:508–509).
"An Act to Enable Creditors to Receive their just debts out of the effects of their absent or absconding debtors" (Province Laws, 1758–1759, Chap. 11).