Russel v. Oakes

1 Super. Ct. Jud. 48

• Court: Massachusetts Supreme Judicial Court
• Decided: February 15, 1763
• Status: Published

Opinion

Judgment was rendered at Cambridge in August Term, 1763, for Defendant.

* () Ch. Just. dissentiente.

3

Qu. If the Reason of the Judgment in Strange, 1155, would not have been pertinent in this Case. Vid. Salk. 344; Carth. 356; L’d Raym’d, 87.

3 (3) S. P. Baker v. Wheaton, 5 Mass, 512. Hemmenway v. Stone, 7 Mass. 58, But see St. 1839, c. 121, § 1; Gen. Sts. c. 53, § 10.

The case on the next page, argued and decided at August term, 1761, seems to have been copied into the book here from notes taken at that time. That the notes were Quincy’s own appears from the memorandum prefixed to the argument of Otis, post, 55; and at the end of the case in the MS. is a reference to “Law File C,” which probably contained his original notes, now lost. It seems strange that this argument should not have been mentioned by the historians. Even John Adams, who was admitted to the bar only four days before, (ante, 35,) and to whom we are indebted for a report of the first argument upon Writs of Assistance in February 1761, (post, 469,) does not appear to have left any notice of this one, except in a letter of October 4, 1780, to Mr. Calkoen, in which he says that the question “was solemnly and repeatedly argued before the supreme court by the most learned counsel in the Province.” 7 John Adams’s Works, 267. But Adams’s diary contains only one entry between his admission and June 5, 1762. 2 John Adams’s Works, 133, 134. And his autobiography and his letters to William Tudor were written many years afterwards. Vid. post, 409, 417. Hutchinson, having received his instructions from England since the first argument, (post, 415, note,) probably considered the second argument a mere form. For copies of the papers, and other information about the Writs of Assistance, see Appendix I.