It is virtually certain that the case that Smith found (p.166) in the Massachusetts Superior Court of Judicature Judgment [recte Record] Book, 1766–1767, f.9[v–10v], the case reported in Quincy’s Reports (see Other Documents), and the case that is the subject of the Privy Council proceedings (see the Committee Report in TNA Documents) are the same case. The parties have the same names, the dates match, the folio reference that Smith gives matches the reference that Quincy gives on p.186, and Quincy tells us that Apthorpe’s counsel moved to take an appeal to the Privy Council, which motion was granted.

A telling correction in the Record Book suggests that Robert Pateshall died during the pendency of the case in the Inferior Court. All of the records that we have are brought in the name of Richard Pateshall, his administrator. Quincy is a bit vague on this point, but nothing that he says contradicts it.

That the entry in the Record Book is for an action of trespass on the case, whereas the case that Quincy reports is described as one of account, can be easily explained: The writ is transcribed in full in the Record Book, and it is for the common count of insimul computasset, a subform of trespass on the case. That that is the writ to which Quincy is referring is apparent from his report of the case. We should not be thinking here of the older, and by this time obsolete, personal action of account.

The discrepancy in the numbers is more troubling. Quincy’s Reports mention no amounts. According to the Committee Report, the Superior Court, hearing the case by writ of review, had reduced a judgment against Apthorpe for £767 5s. 6½d. to £542, from which judgment Apthorpe had appealed (presumably to have the amount further reduced or the judgment vacated entirely), and his appeal was allowed. Smith reports that the action was for £800, but that an appeal was allowed from a judgment of approximately £226 5s. 2d., which is not even close to amount mentioned in the Privy Council documentation.

Eight hundred pounds is the amount that Apthorpe claimed in his petition for review. As the record shows, it includes the £767 5s. 6½d., probably also the costs awarded in the first hearing, and, we must imagine, a ‘rounding up’ for what today we would call ‘incidental and consequential damages’.

We can explain the discrepancy in the amount of the judgment appealed from if we assume that after the appeal had been taken and the documents sent to England but before the judgment was finally entered, the parties agreed to a compromise. (That Pateshall would have been willing to compromise is suggested by the fact, as pointed out by the recent editors of Quincy’s Reports, that the judgment of the Superior Court was almost certainly wrong as a matter of law.) Because of the compromise, Apthorpe did not pursue his appeal after it had been allowed. It was left to Pateshall to get the appeal dismissed for lack of prosecution. Another possibility is that Pateshall’s solicitor, who appeared ex parte before the Committee, or the clerk of the Committee, just got it wrong. After all, if the issue is whether an appeal should be dismissed for lack of prosecution, the amount of the judgment appealed from is quite irrelevant.

Charles Donahue, Jr.