This case throws some light on the conduct of business in Boston in the middle 1760's, but it is primarily of interest for the pleading problem which it presents. James Apthorp, younger son of a leading Boston mercantile family, and William Gardiner, in the course of breaking up their business partnership in 1763, had made an agreement under seal which provided among other things that Apthorp would “pay all debts that are now or may hereafter become due from said company to any person or persons whomsoever for any matter, cause or thing whatsoever, and [would] forever hereafter indemnify and save harmless the said William Gardiner, his Executors and Administrators, of and from all debts and demands now due or that hereafter may become due from said company on any account whatsoever.”1

Apparently Apthorp had not succeeded in meeting all of the “company's” obligations, for early in 1765 Trecothick & Thomlinson, London merchants, advised Gardiner that his old firm owed them £6949 7s. 11d. sterling, plus interest. The letter pointed out that no remittance had been received on the account, “Mr. Apthorp's efforts having as we apprehend been bent to reduce other ballances,” and added that “we have good reason to believe that the greatest part if not all the other demands on Messrs. Apthorp & Gardiner are paid off.” This rather knowing tone is perhaps explained by the fact that the Apthorp family had had a long commercial and personal relationship with Trecothick & Thomlinson. Apthorp's father and brother were at different times in partnership with the firm, and his sister Grizzel was married to Barlow Trecothick, once a Boston merchant, soon to be Lord Mayor of London.2

In 1766 Gardiner brought suit against Apthorp in the Suffolk Inferior Court, alleging that the “demand” from Trecothick & Thomlinson was a breach of the foregoing covenants, in that “the said James though requested hath not paid all the debts that were then and are now due from the company nor hath he the said James though requested indemnified and saved harmless him the said William of and from all debts and demands that were then ... and are now due from said company ... and the said William is still held and obliged to pay the debt and never discharged or indemnified therefrom by the said James ... to the damage of the said William as he says the sum of twelve thousands pounds lawful money of Great Britain” (Document I).

Apthorp's plea to the declaration was a form of specific traverse technically known as non damnificatus, in which he asserted “that the said William hath not been damnified by any demand made upon him by Messrs. Trecothick & Thomlinson or in any manner” (Document II). Gardiner demurred to the plea in a lengthy special demurrer (Document III). The gist of his attack was that the plea did not answer the separate allegation of a breach of the promise to pay debts. In the alternative he asserted that if the plea were taken as an answer to this breach, it was bad because it was not a direct contradiction of the allegation. It thus violated the rule that pleadings must not be argumentative and must not contain a “Negative Pregnant.”3

After several continuances the court in July 1767 found for Gardiner on the demurrer.4 On appeal to the Superior Court the point was argued again at the March term 1768, with Robert Auchmuty and James Otis appearing for Gardiner, and Samuel Fitch and Jonathan Sewall for Apthorp. Although Adams was not of counsel, the questions involved apparently interested him greatly, for he made extensive minutes of the arguments and of the court's ruling (Document IV). That his minutes were taken down on the spot appears in the verbatim phrases from cases read to the court by counsel, which Adams copied with a keen ear, but often without regard to relevance.

The issue argued was a rather fine point of pleading, but it is a good demonstration of the way in which such heroic struggles over form could often represent the actualities of the case. In pleading non damnificatus, Apthorp was trying to put in issue the only point which he could hope to establish on trial, that Gardiner had not been harmed because he had never actually paid or even been sued for the debt due to Trecothick & Thomlinson. Behind the barrage of technical arguments there thus lay one substantial question: did Apthorp bind himself only to indemnify and save Gardiner harmless, either by reimbursing him after he had paid a debt, or by defending any suit brought on it? Or was Apthorp to pay the debts as they arose? If the former, then non damnificatus, amounting to performance of the covenant,5 was a good plea, for Gardiner had in fact been indemnified. If the latter, then the plea was subject to all the technical defects which Auchmuty ascribed to it.

In spite of Fitch's very modern-sounding argument that, whatever its language, the real purpose of the agreement was only to indemnify, the court found that, notwithstanding its generality, the contract embodied a separate promise to pay debts. Since the mere breach of the promise to pay debts would give rise to damages without a showing of special harm, the absence of harm would have served no better as a defense on the trial than it did as a pleading.

On the subsequent trial of the issue of damages, the jury brought in a 176special verdict which raised this question in another form. They awarded Gardiner £12,000 sterling, the full amount set forth in his ad damnum, if the court found that he was “entitled to recover full damages for the debt ... though [he] was not actually sued therefor nor paid the same.” If he was not entitled to full damages, then the jury found that he should receive the amount of the debt, plus interest, which amounted to £8,290 2s. 5 2/3d. At the August term 1768 the court held that the damages were in the lesser amount.6 The facts that Apthorp had sought to plead in bar to the action thus at least served to limit Gardiner to a recovery for the breach of the promise to pay debts, with no additional damages for a failure to indemnify. While even this result may seem to give Gardiner a windfall, it is in accord with modern authority.7

Gardiner's victory seems to have been a hollow one. After a motion for new trial on the grounds of excessive damages that was either denied or withdrawn, Apthorp's counsel entered an action of review, which remained on the docket of the Superior Court until February 1778 when it was finally discontinued by agreement on terms which do not appear. After the 1768 decision, execution had issued, but the court files show that it was returned unsatisfied. Apthorp had been declared an insolvent debtor in February 1768 and had apparently succeeded in winding up his affairs in time to evade Gardiner's demands.8

To the Sheriff of our county of Suffolk his Undersheriff or Deputy Greeting. We command you to Attach the Goods or estate of James Apthorp of Boston within our county of Suffolk merchant to the value 177of ten thousand pounds lawful money of Great Brittain and for want therof to take the Body of the said James if he may be found in your precinct and him safely keep so that you have him before our Justices of our Inferior Court of Common pleas next to be holden at Boston within and for our said county of Suffolk on the first Tuesday of October next, then and there in our said Court to answer to William Gardiner late of said Boston merchant in a plea of covenant broken, for that by a deed of Indenture made and executed at Boston aforsaid on the first day of January A.D. 1763 by and between the said James of the one part and the said William by the name of Wm. Gardiner of Hartford in the county of Hartford and Colony of Connecticut merchant on the other part, one part of which said Deed of Indenture of that date sealed with the seal of the said James shall be in court produced,2 he the said William in consideration of the sum of twenty six hundred pounds lawful money of the Province of the Massachusetts Bay to him in hand paid by the said James in notes of hand payable to the said James and William in company, and in consideration of the covenant in said Deed contained on behalf of the said James, did release and quit claim to the said James as well all the agreements and covenants contained in certain articles of copartnership between him the said James and the said William as well as all his the said Williams right title claim Interest and demand of in and to the Goods, Moneys, effects, debts (except the notes aforsaid) that were then belonging or due to the said James and William in company. And further the said William by said deed of Indenture did then and there covenant to and with the said James that he the said William would pay one half the expences attending the shipping of all the English goods that then were at Hartford aforsaid belonging to the said company to Boston aforsaid and would in case of any loss that should arise on such Goods by shipping the same as aforsaid bear one half of all such losses, and that he the said William would deliver to the said James all the monies notes papers books and goods belonging to said company (except the notes before excepted) as soon as he the said William conveniently could that were then in his possession, and 178would from time to time deliver to the said James all such moneys, notes, bonds, papers, and goods (except the notes before excepted) as should come to his the said Williams hand and possession that belonged to the said company, he the said James paying the charges thereof, if any there should be. In consideration whereof the said James did then at Boston aforsaid by said deed of Indenture among other things covenant with the said William that he the said James would on or before the first day of January A.D. 1764 pay and deliver to the said William the further sum of three thousand five hundred and thirty three pounds six shillings eight pence like money in good notes on interest that should then be due and payable on demand, and that he the said James would make good and pay to the said William all such sums of money as should not be recovered by and paid to the said William in the same notes which he the said James should put into his the said Williams hands for the payment of the said sum of three thousand five hundred and thirty three pounds six shillings and eight pence; that he the said James would make good and pay to the said William all losses that should or might arise on any or all of said last mentioned notes, and also that he the said James would pay all the debts that were then or should thereafter become due from said company to any Person or persons whomsoever for any matter cause or thing whatsoever and would for ever thereafter indemnify and save harmless the said William of and from all debts and demands then due or that might thereafter become due from the said company on any account whatsoever.3 And the said William did at said Boston on the said first day of Jany. A.D. 1763 by said deed of Indenture further covenant with the said James that he the said William, in case the money due on any of the said notes should not be paid within six months after the same should be demanded by the said William, that then he the said William would cause the same to be sued for and would prosecute all such suits and obtain Judgment as Soon as he could for the recovery thereof, and would do his endeavour to obtain satisfaction of all such Judgments, and in case he the said William should neglect to prosecute as aforsaid then he should take the risque of the payments of all such notes upon himself and bear the loss, if any, accrued. And that the said James by said deed of Indenture then, viz., on the first day of Jany. A.D. 1763 at Boston aforsaid, did further covenant with the said William that in case the 179said William should put any of the last mentioned notes in suit and should not finally obtain full satisfaction thereof in money but should be obliged to levy his the said Williams execution on and take real estate in discharge of all or any part of the same, then he the said James would after notice thereof pay to the said William at said Williams election other notes on interest due in the year A.D. 1764 the amount of what he the said William should so take in real estate as aforsaid. And the said William then, to wit on the said first day of Jany. A.D. 1763 at Boston aforsaid, by said deed of Indenture did further covenant with the said James that he the said William would quit claim to the said James all the right and title that he the said William should have in any such real estate so taken as aforesaid, the said James requiring it and being at the cost of the conveyance.4 Now the said William in fact saith that he hath well and truly performed and fulfilled all and singular the covenants contained in said deed of Indenture on the part of the said William to be performed and fulfilled according to the true Intent and meaning of the same, yet the said James tho requested hath not paid all the debts that were then and now due from the company, nor hath he the said James tho requested indemnified and saved harmless him the said William of and from all debts and demands that were then, to wit on the said first day of Jany. A.D. 1763, and are now due from said company. For that on the twenty fifth day of Jany. A.D. 1765 there was due from said company to Messrs. Trecotheck and Thomlinson the sum of six thousand nine hundred and forty nine pounds eleven shillings and seven pence sterling with interest from the said James and William in company as aforsaid, which said sum and the interest thereof then at Boston aforsaid by the said Messrs. Trecothick and Thomlinson was demanded of the said William as one of the said first mentiond company, and the said William is still held and obliged to pay the same and never discharged or Indemnified by the said James therefrom. So the said James his covenants aforsaid hath not kept but broke the same to the damage of the said William as he says the sum of twelve thousand pounds lawful money of Great Britain which shall then and 180there be made to appear with other due damages. And have you there this writ with your doings therein. Witness Eliakim Hutchinson Esq. at Boston this twelfth day of September in the sixth year of our Reign Annoque Domini 1766.

For want of Goods or estate to Attach of the within named James Apthorp I took his Body and have taken bail to Respond the action at time and Court within mentiond.

And the said James comes and defends &c.,2 and saith that the said William hath not been damnified by any demand made upon him by Messrs. Trecothick & Thomlinson or in any manner as the said William in his Declaration hath alledged and supposed and thereof the said James puts himself on the countrey.

And the said William says that the plea aforsaid pleaded by the said James in manner and form afore pleaded and the matter in the same contained are insufficient in Law and that he the said William to that plea in manner and form aforsaid pleaded hath no necessity nor is bound by the Law of the Land in any way to answer and this he is ready to verify wherefore for want of a sufficient plea in this behalf the said William prays Judgment and the damages by reason of the premises to be adjudged to him and costs.

And for causes of demurrer in Law in this behalf according to the 181form of the Statute in such case made2 he sets down and to the Court here expresses the causes following

And the said James says that the plea aforsaid by him in manner aforsaid pleaded and the matter therein contained are good and sufficient in Law to preclude him the said William from his action aforsaid against him the said James which plea the said James is ready to Verify &c. and because the said William doth not answer to that plea nor hitherto any ways deny the same he the said James prays Judgment that the said William may be precluded from his action aforsaid against him and he be allowed his Costs.

Covenant Broken. Plea.

Special Demurrer. 1. 2. 3. 4.

Joinder in Demurrer.

Auchmuty. 2 Breaches assigned in Declaration by Plaintiff. 1. 2. not indemnifying. Plea is that Plaintiff was not damnifyd by any Demand from Trecothick & Thomlinson.

The 3 first Reasons in the Special Demurrer, are to the same Point. —Tro.2

Holts Reports. Page 206. Annersley vs. Cutter. 2nd. Exception is that he did fit him to be Master of Arts. As to the first the Plea is good. 184Scismaticus inveteratus. Pleas adjudgd bad because not shewn who maintained him, from the Time of Batchelor till Master. Incompleat Plea.3

1. Salk. 179. Weaks vs. Peach. Replevin for. Plea an Answer to Part and whole.4 2 Breaches in the Declaration, but one answerd in the Case at Bar. They come and defend &c. i.e. take the whole Defence upon them, and then go on, and answer but one Cause of Action. All Declarations must have compleat Answers.

4th. Objection to the Plea—that he has not in his Plea set forth that he had paid the Debts, and how and when and where &c. 3d. Inst. Cler. 522. Covenant to indemnify and save harmless, ought to shew how he saved harmless.5 Our Breaches are that he hath not paid, and hath not saved harmless. An Issue cannot be made out of two Negatives any more than out of two Affirmatives.

Infregit Conventionem. 3. Levinz. 19. Pitt vs. Russell. Breach assigned in the Negative and Plea in the Negative.6

Cro. Car. 316. Non Debet. Oyer. Payment at Day. Court if issue joined aided by Statute Jeofails, 'tho upon Demurrer bad.7

Informal, argumentative, &c. Too general, not direct and certain. A Negative Pregnant. Cro. Jac. 559. Lee vs. Luther. Pleaded in the Negative that he had not, &c. Plaintiff demurred.

Negativa pregnans. 1st. Argument. 1st. Cause.8

Ours is non Payment, we in the Reason of the Case and therefore the Case must uphold us. These are the Exceptions and these the Authorities to support them. Negative answers to Negative Breaches. All the Entries, all the Precedents shew the Plea to be bad. Law abhors and detests a negative pregnant. Double Pleadings by the Statute and the Leave of the Court, may be, but no Statute allows of a Negative pregnant.

This Plea concludes to the Country too, which it ought not.9

Fitch. For Defendant Apthorp. Honors have heard Declaration, 186Plea and Exceptions. We have answerd that Gardiner Plaintiff hath not been damnified by any such Demand as he has set forth in his Declaration. The whole Effect of the Covenant is, to indemnify Gardiner, from certain Debts and Demands. 2 Ways of indemnifying, are by Payment, by procuring a Discharge.

This Covenant is only a Covenant to save harmless, and the Effect is the same as a Bond with a Penalty conditioned to save harmless. Non Payment is no Breach, and would be bad upon a general Demurrer.

Saville. Page. 90. Case 167. Anonimous. Debt upon an Obligation. Ought to plead not damnified. Bound to discharge pay and save harmless from Rent. Had Defendant pleaded that Plaintiff was not damnifyed, it would have been good.10 Nothing to distinguish this Case from that of Savilles. This exempts this Case from the Force of every Authority the Gentleman has presented.

1. Salk. 196. Griffith vs. Harrison. In some Cases the Intention is traversable. Plaintiff did not shew a Disturbance. Counterbond cannot be sued without a Special Damnification.11

If Plaintiff can support an Action now without a special Damnification, he might have supported one Eo Instante that the Covenant was executed.

Cro. Jac. 634. Horseman vs. Obbins. Debt on obligation Conditiond for Indemnification. Demurred because not shewn quo modo indemnem &c. Being a Plea in the Affirmative, should have shewn quo modo, but if he had pleaded generally that he had not been damnified non damnificatus, it would have been good.12

Cro. Jam. Jac. When one pleads a discharge and that he saved 187him harmless he ought to shew how, but if he had pleaded generally non damnificatus it had been good &c.13

3. Mod. 252. Mather vs. Mills. Non Damnificatus and Demurrer. Negative Parish not damnified. Good.14

2. Mod. 305. Shaxton vs. Shaxton. Condition to save harmless, &c. Defendant pleads not damnified, &c.15 Same Principle.

Negative Answer to Negative Breach. This is a wrong Representation. The Words of the Declaration. Covenant. Will save harmless from all Debts due from the Company of Gardiner & Apthorp to Trecothick & Company. They have made use of negative Words, but not to the Purpose. What is our Answer to their Declaration. That they have not been damnified, by any such Demand, which is the only Breach they have alledgd that could support their Action. Concluding in Bar, when the Matter is brought to a plain Affirmation and Negation would be ill, because it tends to protract Pleadings in Infinitum, therefore we concluded properly to the Country.

Jenkins's Centuries Page 110. Case 12. Non Damnificatus a general Issue.16

Sewall run over the same Ground.

Otis. Read Several Authorities, one from Leonard17 and several others, to shew that where there is a Covenant or Bond to save harm-188less only, there Non Damnificatus will do for a Plea. But where there is Covenant or Bond to pay Rent, to pay Debts, &c. and to save harmless from that Rent, those Debts &c., there Non Damnificatus will not do.

C. J. 18 There is no Time sett, when the Payment of the Company Debts shall be made, in the Covenant.

To pay, and shall pay all the Debts, due or that shall hereafter become due.

Difference between an Undertaking, by Covenant or Bond, to pay and save harmless, And an Undertaking to save harmless only.

The Judges of England make a strong Inference from the Silence of Precedents.

Tis a Duty as much when there is no Day fixed as when there is a Day fixed, and the Law says it shall be done in a reasonable Time.