USA > Massachusetts > Hampden County > Springfield > Colonial justice in western Massachusetts, 1639-1702; the Pynchon court record, an original judges' diary of the administration of justice in the Springfield courts in the Massachusetts Bay Colony > Part 19
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The two forms of action specifically mentioned for jurisdictional purposes were trespass and debt. Presumably the term "trespass" comprehended "trespass on the case," commonly referred to in the Record, and in other Massachusetts court records of the seventeenth century, as "action of the case." The commonwealth laws entitled "Actions" referred to "Actions of the Case Concerning Debts and Accounts." 1 Most of the causes in the Record characterized as to form of action are actions of debt or actions on the case. More spar- ing use was made of actions of trespass, detinue, and slander or defa- mation. Only a few entries make reference to covenant or replevin. There are no references in the Record to general or special assumpsit, trover, ejectment, or action of account. An examination of the rec- ords for other jurisdictions indicates that such absence was not pe- culiar to Hampshire. One entry refers to an "action of theft," one to an "action of battery." 2 The action of unjust molestation, found in several jurisdictions, does not appear in the Record.
Many entries are not characterized in form-of-action terms. Per- haps this reflects the predilections of the person making the entry. It seems more likely that, for the period of the First Charter at least, it indicates adoption by litigants of the form of summons provided in the printed laws of the commonwealth. This "president" or "forme," which made only functional reference to any form of action, read as follows in the Laws and Liberties of 1648:
To (IB) Carpenter, of (D) . You are required to appear at the next Court, holden at (B) on the - day of the - month next ensu- ing; to answer the complaint of (N C) for with-holding a debt of
2 Rec. 78, 199. For recognition of ac- count and actions on the case upon ac- count as forms of actions see 2 Rec. Mass.
1 Col. Laws Mass., 1672 2. Bay 16. In the Suffolk County Court rec- ords (c. 1671-1680) actions of the case upon account were frequently used.
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CIVIL JURISDICTION
due upon a Bond or Bill; or for two heifers etc: sold you by him, or for work, or for a trespasse done him in his corn or hay, by your cattle, or for a slaunder you have done him in his name, or for striking him, or the like, and heerof you are not to fail at your peril. Dated the -- day of the - month 1641.3
The only significant change in this form under the First Charter was the insertion in the 1672 laws of the words "in His Majesties Name" after the word "required." 4 The form of attachment pro- vided contemplated the same description of the complaint as in the form of summons.
However, despite this statutory form there may have been some judicial expectancy of use of forms of action since the entry in a 1659 action noted "noe case specifyed in the summons." 5 In any event, in seventeenth-century Massachusetts Bay failure to charac- terize as to form of action was not peculiar to the courts of western Massachusetts.
In the form of summons prescribed in 1692 for use in actions be- fore justices of the peace defendant was required to answer plaintiff in a "plea of " later changed to an "action or plea of
." Substantially the same language was employed in the form of attachment to be used by justices of the peace.6 However, this stat- utory prescription apparently did not serve in every case to evoke characterization by form of action.
DEBT
No great use was made of the action of debt under the First Char- ter, about a dozen such actions appearing in the Record.7 By com- parison much greater use was made of this form of action in such jurisdictions as Essex, Suffolk, and Norfolk-at least on the county level. However, during this period the Record lists such actions as for "failinge in the payment of a debt" or "for not paying a debt" which, although not so designated, were in effect actions of debt or perhaps, as found in the Suffolk County Court records, actions of the case con- cerning debt.8 In a number of cases the circumstances of the debt do not appear. However, actions arose out of such matters as the sale of land, goods sold and delivered, a bill obligatory held by plaintiff, the balance due on an account stated, a payment ordered by the commit-
3 Laws and Liberties Mass. 55.
4 Col. Laws Mass., 1672 162.
5 Rec. 77.
6 1 Acts and Res. Prov. Mass., Bay 81, 462.
7 Rec. 6, 66, 77, 96, 167-168.
8 Rec. 35, 38, 99, 171, 173-174, 180.
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INTRODUCTION
tee for the meeting house at Springfield, work performed, and a debt due a decedent's estate.ยบ Debts were frequently payable in commodi- ties such as corn or wheat, and, in one case, although tender of the debt was made in Indian corn and rye, plaintiff unsuccessfully con- tended that the debt should have been paid in wheat.10
After 1686 greater use was made of the action of debt. Many of these actions were so-called "debts due by booke" in which plaintiff, frequently a merchant or artisan, sought to recover for goods sold and delivered or for work performed on the basis of entries in books of account.11 A number of such actions were brought by James Moore in 1687-88 for debts due the estate of Patrick Cunningham, the merchant competitor of John Pynchon. (In allowing these debts to be collected Pynchon disregarded a 1684 holding by the Court of Assistants that the account books of a deceased creditor were not ad- missible as evidence of debts due decedent.) 12 As in the earlier pe- riod, not all such actions were specifically labeled actions of debt. Other actions of debt were brought for monies due under an agree- ment for keeping a field, under some assignments of debts, for drinks provided, on the balance of an account stated, and for work per- formed.13
There is only one reference to an "action of Debt due by Bil," presumably upon a bill obligatory-a promissory note under seal.14 However, in several other instances suit was brought for debts due by bill without reference to any specific form of action.15 These prob- ably should be regarded as actions of debt, yet it should be noted that on June 30, 1685 an action on the case was brought for "neglect- ing or delaying to pay Money according to Bill." As noted, there was some recognition in the laws of "actions of the case concerning debts and accounts." 16
Under English practice an action of debt would lie only for a liquidated or certain sum of money due plaintiff; damages awarded for the detention of the debt would be merely nominal. In general, these standards were adhered to in the cases appearing in the Record, although allegations as to the amount of the debt sued for were somewhat elastic in a few cases.17 An obvious deviation from English practice appears in a "Plea for a debt of .15s" entered in 1693. In this
9 Rec. 35, 38, 77, 79, 99, 167, 171, 173, 13 Rec. 220-222, 241-242.
180.
14 Rec. 241.
10 Rec. 173.
15 Rec. 157, 211, 214, 227, 240-241.
11 Rec. 201, 204, 206, 216, 217, 221, 227, 229, 233, 252-253.
16 Rec. 192; 2 Rec. Mass. Bay 16; Col. Laws Mass., 1672 2.
12 Rec. 203-204, 206. See 2 Rec. Ct.
Assts. Mass. Bay 269.
17 Rec. 77, 220.
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case, defendant having owned receipt of fifteen shillings to stub plaintiff's field, Pynchon found for the plaintiff "a quarter of an acre of Land wel stubbed forthwith fit for Plowing," or fifteen shillings and costs of court.18
In contrast with the sparse use of the action of debt evidenced in the Record itself for the period of the First Charter, the supple- mental material from the Registry of Probate records shows that about a dozen such actions were brought before the commissioners sitting with County Court powers between 1660 and 1662. Several of these actions involved debts due by bill or on accounts between the parties. In most of these cases the entries refer to "an action of debt and damage to the value of pounds" or "an action of debt with damage to the value of pounds." 19 Thus, from the entries at least, it does not appear that the amount of the debt and the amount of damages were pleaded separately, a significant devia- tion from English practice. Secondly, it appears that in a few cases, again contrary to English practice, plaintiff was allowed to prove a debt less than the amount alleged and recover judgment thereon.20
In the Suffolk County Court (c. 1671-1680) it was the practice to plead the amount of the debt and damages separately but judg- ments were frequently given for less than the amount of the debt pleaded. In some cases penal bonds were chancered by the Suffolk County Court, but no instance of chancering appears in the Record, probably because of the limited jurisdiction exercised. Whether, in any event, Pynchon or the commissioners had the power to chancer a penal bond is moot.
ACTIONS ON THE CASE
In the first years of the court held at Springfield most of the causes entered in the Record were termed "actions of the case." These covered a wide range of subject matters such as wages due for work on a house; the taking away or failure to return boards or planks (the subject matter of several actions, including two by Wil- liam Pynchon) ; failure to perform sufficient work for a day's wages; felling some trees on plaintiff's lot; for some corn delivered into de- fendant's possession; failure to divide properly the recompense for driving home certain stray sows and taking more pigs with his sows than defendant was entitled to; laying "false imputations of money
18 Rec. 219.
19 1 Hamp. Cty. Probate Ct. Rec. 4, 7,
10, 14. Cf. Potter v. Osborne, ibid. 14,
where the amount of damages was appar- ently not specified.
20 Ibid. 4, 7. See also to the same effect Rec. 66, 96.
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INTRODUCTION
dealinge"; failure to deliver a gun according to bargain; failure to break up certain ground according to bargain; the detention of a rug; the use of some tools and the charges of two journeys to recover such goods; detention of a pig; stating that plaintiff "said he was sorry that he did not make an end of his Cow"; abusing plaintiff's child; failure to return monies paid toward building plaintiff's chim- neys, which defendant had neglected to do; "unjust possessing" of plaintiff's land; and damage done by swine to plaintiff's corn.21 In a 1641 case John Burt complained against Judith Gregory "in an ac- tion of the case for breach of Covenant" for molesting plaintiff's daughter Sarah.22
Some of the above causes should have been labeled actions of trespass. Others in English practice probably would have been termed assumpsit (which had evolved from case) or debt. It is possi- ble that this widespread use of "action of the case" reflects William Pynchon's unprofessional attempts to have procedure in the Spring- field courts conform to English standards. After the departure of the founder for England, there is a decided decline in the volume of such cases found in the Record. However, an examination of other court records for the commonwealth period shows that extensive and somewhat indiscriminate use was made of action on the case in some jurisdictions, such as the Suffolk County Court. (In Essex County Court, if the calendaring in the printed records can be trusted, few actions on the case are found.) Later actions of the case were brought for failure to perform an arbitration award; for striking plaintiff's wife "with a long stick to her great prejudice"; for "unjustly steal- inge away the affections" of plaintiff's "Espoused wife"; for the for- feiture of a bond; for breach of an agreement; for taking away tim- ber; and for "neglecting or delaying to pay Money according to Bill." 23 A 1659 action by four plaintiffs against the town of North- ampton concerned the town's turning out of the office of selectmen some inhabitants so chosen.24 A 1693 "plea of Trespass upon the case" alleged the wrongful taking of a swine from plaintiff's possession un- der color of a writ of replevin irregularly executed.25
For the period in which the commissioners exercised the powers of a County Court (1660-1662) the entries in the Registry of Pro- bate records reveal actions on the case covering such diverse matters as refusing to deliver a steer according to bargain, wrongfully im- pounding swine, taking a mare without leave, refusing to deliver a bull, wounding a horse, taking away bricks, "fraudulent dealinge"
21 Rec. 3-4, 6-8, 13, 17, 22-23, 25, 37,
23 Rec. 61, 74, 82, 84, 192. 24 Rec. 77.
61.
22 Rec. 17.
25 Rec. 219.
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about a meadow, failure to make distribution to a legatee, and with- holding a debt due by book account.26
To some extent the decline in the use of action on the case is ac- counted for by an increase in actions of trespass and of detinue. In addition, causes, which earlier presumably would have been denoted as actions on the case, are entered without reference to any form of action. A number of such cases concerned failure to perform a bar- gain, such as "non-performance of a bargayne of fetchinge . . . some fencinge stuffe"; "for not deliveringe a Cow and calfe accordinge to bargayne"; for John Sackett's "not performing his bargayne in thatching the Town barne" (an action by the selectmen of Spring- field) ; "for non performance of a bargayne of ploughing"; for with- holding monies which defendant had engaged to pay for "victualls" supplied defendant's servant; "for not weaving linnen yarne into cloth according to agreement"; refusal to make satisfaction promised when taking plaintiff "off from a peice of Joinery worke"; for taking away the best or English hay cut on certain fields without dividing it, "Contrary to agreement"; and for neglecting to perform an en- gagement to cut and deliver three loads of wood.27 Again in English practice these probably would have been brought in assumpsit. How- ever, lack of characterization as to form of action was not limited to "frontier" courts. Many examples can be found in the records of the Suffolk and Essex County Courts, among others.
Other entries involved recovery of personalty and/or damages for wrongful detention. The chattels so detained included a sword, a plane which plaintiff "had formerly agreed for," a "Sandy Swine," an iron spade (detained over twelve months) , and a canoe detained nearly a month.28 A 1664 action for wrongfully impounding a horse was probably in the nature of an action on the case. A 1694 entry con- cerned a "Plea for unjust taking away Boards" from the sawmill at Enfield.29 However, an earlier entry, in 1659, refers to an "action of Theft" for stealing an ax at the lead mines; a second action entered at the same time is described only as "for stealinge about 10 pounds of lead." 30 No recognition has been found of such a form of action in the commonwealth laws or any use of it by other courts. A 1679 ac- tion for hindering plaintiff "in the Improvement of Land" at West- field, in which suit was let fall, probably should be regarded as in the nature of an action on the case, judged by the standards disclosed by the Record.31 Several actions before the commissioners in September
26 1 Hamp. Cty. Probate Ct. Rec. 3, 7, 10, 14.
27 Rec. 72, 74, 78, 90, 95, 151, 173, 223,
28 Rec. 82, 174, 182, 207, 218.
29 Rec. 103, 222.
30 Rec. 78.
235A.
31 Rec. 168.
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INTRODUCTION
1661, undesignated as to form of action, probably come within the scope of action on the case-actions for wrongfully attaching a brick kiln, for wrongfully attaching a bull, and for taking a cow "in a dis- honest way." 32
TRESPASS
Presumably the term "trespass" in the first jurisdictional grant at Springfield was designed to include trespass quare clausum fregit and trespass de bonis asportatis, as well as trespass on the case, but not until 1649 was an action of trespass entered in the Record, other than actions on the case. In this instance Joseph Parsons complained against Reice Bedortha "in an action of Trespasse for pulling downe his fence against his hay Rick in the long meddow." 33 Bedortha countered with an action on the case against Parsons for "unjust pos- sessing of his land in the long medow." The jury found for Parsons in both actions but whether it determined the title to the land or only the possessory right is not certain from the brief entries. In com- parison with this picture the records of certain county courts, such as those for Essex, Norfolk, and York, reveal extensive use of trespass, due in large part to jurisdiction over actions involving real property.
The next action of trespass was not entered until September 1693 when Robert Pease of Enfield in a "Plea of Trespase" alleged that Samuel Terry and John Mighil had unjustly taken from him two loads of hay cut and standing in his fields. The pleas and evidences being read, John Pynchon found for the plaintiff two loads of hay or fourteen shillings and costs of court, if the land was his on which the hay was made, and for defendants, costs of court, in case the land on which the hay was made was theirs.34 While not indicated in the en- try, presumably defendants justified and demurred upon plea of ti- tle and would be expected to pursue their plea and bring forward a suit for trial of their title at the next Inferior Court of Common Pleas held in the county. However, such procedure was not given statutory form until passage in June 1698 of An Act for Preventing of Trespasses.35 In any event, there is no indication that defendants tried their title in the Inferior Court of Common Pleas. The Pease action, in its facts and the procedure followed, was very similar to two earlier wrongful hay-taking cases brought in 1684 in which the form of action was not specified.36 However, no law under the First Charter contemplated transfer of trial of title to the County Courts.
In Gun v. Noble in February 1695/6 defendant was summoned
32 1 Hamp. Cty. Probate Ct. Rec. 7.
33 Rec. 37.
Rec. 219.
35 1 Acts and Res. Prov. Mass. Bay 324- 325.
36 Rec. 183-185.
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CIVIL JURISDICTION
in a plea of trespass for felling and taking away pine trees on ground granted plaintiff by the town of Westfield for turpentine, but the ac- tion was not prosecuted. In Cooley v. Kibbee, a plea of trespass for cutting grass on plaintiff's meadow at Fresh Water Brook, defendant refused to become bound to prosecute title at the Inferior Court of Common Pleas, as provided by the above act, and Pynchon accord- ingly found for plaintiff two shillings and costs of court. In both Cooley v. Hale and Keepe v. Kibbee, two similar actions of trespass heard in the next month, defendants justified and demurred upon plea of title and the statutory procedure was pursued.37
Only one action of trespass appears in the Record which was in effect trespass de bonis asportatis. This was Bissell v. Miller (1700) , an "action or Plea of Trespase for unlawfully or unjustly taking away and withholding" plaintiff's "Plow Irons." An action a few years ear- lier for "disorderly and violently" taking some bags left in plaintiff's custody was not characterized as to form of action.38
BATTERY
In December 1695, in Granger v. King, there was "a Plea of Tres- pass and Battery for abusing" plaintiff "by Striking and wounding him." 39 This is the only use made of this particular form of action in the Record. The close relation between civil and criminal jurisdic- tion in assault and battery cases has already been noted; however, in only one instance was there any reference to a form of action. In June 1686 complaint was made against John Norton by Samuel Ely "in an action of Battery etc" for that Norton "strake abused and drew Blood" from plaintiff.40 That "battery" was regarded as a separate form of action under the commonwealth laws appears in the forty- shilling restriction upon the original jurisdiction of the County Court "except in cases of Defamation and Battery." 41 In English practice battery would have been termed "trespass vi et armis" and not regarded as a separate form of action. Records for other parts of the colony are consistent with the Record in showing relatively little use made of battery as a form of action.
DETINUE
Only five actions of detinue appear in the Record, all during the period from 1692 to 1695. In the first case Richard Waite, the prison
87 Rec. 228, 245-246.
38 Rec. 232, 246.
39 Rec. 226.
40 Rec. 199.
41 Col. Laws Mass., 1672 21.
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INTRODUCTION
keeper, in a "Plea of detinue" sued Thomas Lamb for five shillings in fees due for defendant's commitment. In Parsons v. Mills, a month later, an action of detinue was brought for not returning or render- ing a true account of some cloth. In Philips v. Adams, an action of detinue was brought for "neglecting the payment of 27s. or there- abouts." In English practice, of course, detinue could be brought for recovery of a specific chattel only and not for a sum of money; except that if the chattel could not be returned, plaintiff could recover its value. In December 1695 a plea of detinue was brought in Petty v. Kibbee, for withholding from plaintiff a steer and in King v. Smith for taking away or detaining some cloth.42 Nothing in the statutes passed under the Second Charter suggests why the action of detinue, used chiefly in the field of bailment in England, was not used earlier. An examination of other court records of Massachusetts Bay for the commonwealth period reveals a practice, consistent with the entries in the Record, of using action on the case for recovery of chattels where, in English practice, detinue would have been employed.
COVENANT
One action of covenant, or what appears to be such an action, ap- pears in the Record, when in June 1660 Hugh Dudley complained against Thomas Mirick "for not performinge Covenante in plow- inge up" a half acre of ground in the previous month at plaintiff's demand "as by the Covenante, presented appeares." Plaintiff plead- ing great damages and that he still expected the plowing to be done, the commissioners adjudged that defendant pay ten shillings in dam- ages and also plow up the half-acre by the next May-an obvious de- parture from English practice.43 It does not appear from the entry whether or not the covenant produced was under seal. The "action of the case for breach of Covenant" in Burt v. Gregory has already been noted. Examination of other court records indicates that little use was made of covenant as a form of action in seventeenth-century Massachusetts Bay.
REPLEVIN
Only a few scattered cases of replevin appear in the Record. How- ever, the laws of the commonwealth clearly contemplated the use of
42 Rec. 215, 216, 220, 226.
43 Rec. 88. Perhaps this should be re- garded as special assumpsit. Compare the 1648 case in the Essex County Court (Archer v. Fullar) calendared as: "De-
fendant to set up the fence within one month according to the covenant, the stuff being brought to the place." 1 Rec. and Files Quart. Cts. Essex Cty. Mass. 147.
1 69
CIVIL JURISDICTION
this form of action since the Presidents and Formes in the several vol- umes of printed laws set forth the form of a writ of replevin.44 The records of other courts indicate greater resort to this writ. The first action of this nature was brought in June 1675 by John Aires against two selectmen of Brookfield, for unlawful distraint of some pewter dishes by the constable at their order.45 This case indicates one method, at least, of judicial review of warrants of distress issued by selectmen in enforcement of town orders. The fact that this is the sole case of this nature in the Record indicates that fines leveled by selectmen were usually paid or distress acquiesced in.
Several acts passed under the First Charter make reference to the use of an action of replevin by the owners of impounded horses or cattle to secure their return.46 In Miller v. Day, in August 1685, plain- tiff replevied a mare impounded by defendant and demanded ten shillings in damages for defendant's refusal to return the animal when offered poundage. Defendant had demanded five shillings from plaintiff "not so much for damage" as that the mare, being unruly and found unfettered in defendant's oats, defendant was entitled to five shillings under an amendatory law of 1673. A reading of this act reveals provision for a five-shilling fine to the town, as well as for damages accruing as a result of the offense, but does not indicate that the injured party was entitled to the fine. Apparently John Pynchon made the same reading of this law for he found for defendant only three shillings and sixpence, presumably for damage accruing from the offense.47
One of the early acts passed under the Second Charter provided for forms of writs for use by justices of the peace. However, this list did not include a writ of replevin, and it was not until 1698 that, fol- lowing the form of writ of replevin provided for use in the Inferior Courts of Common Pleas, the statement appears: "The like form of replevin to be observed for matters cognizable before a justice of peace, mutatis mutandis." 48 In the September 1693 "plea of Trespass upon the case" in Goulding v. Selden, defendant was alleged to have taken out of plaintiff's custody a swine "under colour of Law and Countenance of Authority by vertue of a writ shewed and caled a Replevin ... not regularly executing any writ and regardless of the Comands and direction of the Law." This case, in which Pyn- chon found for the plaintiff, may reflect doubts as to the status of re- plevin in view of the statutory omission. However, next year in
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