Legal Papers of John Adams, volume 1
8 Mod. page 115, 16.2 Hardwick's Cases.3
Gilbert's Hist. of Common Pleas.4
Dana.5
Gershorn Fletcher. 55 Years, Prescott the Grandfather of Plaintiffs, have possessed it, and Plaintiffs since and knew they possessed the Grist mill and fulling Mill,6
Keep in Possession of the Forge where the Saw mill was.
David Goodhue.7 Priest 30 Jany. 1771. took lever out of Prescotts Gate, and tossed it into the Stream. The Gate shut down. Knows Possession 8 years. Dam broke but cant say, who broke it. Heard Priest say the dam would not stand long, a Week before it was tore up.
Jona. Pierce. Priest told me that the upper Dam would not stand, that it would be tore down—the night before it was done. Plaintiffs have been in Possession. Upper dam built in 1771. Upon Prescotts Land—about 30 or 40 Rods above the other. A benefit to all alike when let out.
Moses Goodhue. Forgot what Priest said, but think he said it would not stand long. The Forge had the longest Use of the Stream, when not Water eno. for all the Mills.
Nat. Prentice.8 A Lever, Joel kicked off into the Stream. Joel came into Mill without leave, and shut down the Gate.
In JA's hand. Adams Papers, Microfilms, Reel No. 185.
Lowther et ux. v. Kelly, 8 Mod. 115, 88 Eng. Rep. 91 (K.B. 1722): Husband and wife sued on an indenture. The wife dying, the husband was allowed to proceed under the statute 8 & 9 Will. 3, c. 11 (1697), note
Judge Cushing's report of the present case (Doc. IV) suggests that the case cited was Middleton v. Croft, Hardw. 395, 95 Eng. Rep. 255 (K.B. 1737): When husband and wife declare in prohibition, and take a partial judgment, and the husband dies before costs allowed, the widow may take her costs upon suggestion of the husband's death.
Gilbert, Common Pleas
242–248, treats at length the subject of abatement by the death of parties.
Francis Dana, counsel for the Prescotts.
Fulling is the process of cleansing and thickening cloth by beating and washing.
OED
.
Goodhue was a clothier (cloth maker) who operated the fulling mill next to the Prescotts' gristmill. Deposition of Nathaniel Prentice, SF 148100.
Prentice, who was approximately 15 years old at the time of the events in question, was then David Goodhue's apprentice. His deposition indicates that the Prescotts encouraged him to “shadow” Priest's activities around the dam and the mill. Deposition of Nathaniel Prentice, SF 148100.
Prescott et al plaintiffs vs. Priest.
Trespass quare clausum fregit—Defendant pleads in abatement that one of the plaintiffs died since the last continuance. Demurer and joinder.
Mr. Adams in support of the plea cited Gilb. prac. Com. pleas. 242. 2482—Hardwicke's cases 395.3
Dana for plaintiff—cites 8 Mod. 115. 116.4—Bac. abr. Abatement. F. p. 7.5
Per Cur
Note
Note
Note
1 Bacon, Abridgment
7: “(F) Of Abatement by the Death of the Parties. The general Rule to be observed in this Case is, that where the Death of any Party happens, and yet the Plea is in the same Condition as if such Party were living, there such Death makes no Alteration or Abatement of the Writ. A difference has been held with Respect to Real Actions, where there are several Plaintiffs, and there is Summons and Severance (as there is in most Real Actions) that in these the Death of one of the Parties abates the Writ, but not in Personal or Mix'd Actions, where one intire Thing is to be recovered.” The word “Severance” refers to the right of several defendants to answer severally. See Stephen, Pleading
270.
8 & 9 Will. 3, c. 11, §7 (1697): “And be it ... enacted ... That if there be two or more plaintiffs or defendants, and one or more of them should die, if the cause of such action shall survive to the surviving plaintiff or plaintiffs, or against the surviving defendant or defendants, the writ or action shall not be thereby abated; but such death being suggested upon the record, the action shall proceed at the suit of the surviving plaintiff or plaintiffs against the surviving defendant or defendants.”
That is, the court unanimously ruled that defendant would file a new answer, or “answer over.”